MONOLITH PORTIANO CEM£NT COMPANY i T 1914- THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW MOHUN ON WAREHOUSEMEN A COMPILATION OF WAREHOUSE LAWS AND DECISIONS CONTAIN I XG AN ANNOTATED COPY OF THE UNIFORM WAREHOUSE RECEIPTS ACT, THE STATUTES OF EACH OF THE STATES AND TERRITORIAL POSSESSIONS PERTAINING TO WAREHOUSE- MEN, TOGETHER WITH A DIGEST OF THE DECISIONS OF THE STATE, FEDERAL, AND TERRITORIAL COURTS, IN ALL CASES AFFECTING WAREHOUSE- MEN, WITH AN ANALYTICAL INDEX. BY BARRY MOHUN OF THE BAR OK THE DISTRICT OF COLUMBIA. SECOND EDITION CHICAGO NICKERSON & COLLINS COMPANY. 431 South Dcarliorn Street. 1914. Copyriglit. 1904. By American Warehousemen Association. Copyright, 1914. By Nickerson & Collins Company. PREFACE TO SECOND EDITION. The plan adopted for the first edition of this work of alloting a chapter to each state, of giving in each first the laws pertain- ing to warehousemen followed by the decisions arranged in a series of groups each represented by a letter of the alphabet, has been adhered to in this edition. Since the appearance of the first edition the Uniform Warehouse Receipts Act has been drawn and enacted in twenty-eight states, the District of Colum- bia, the Philippine Islands, and Alaska. It is hardly necessary to add that the passage of the Act by the legislatures of this number of states and territories has been extremely gratifying to all those interested in warehouse jurisprudence and in the codification of commercial law. The American Warehousemen's Association, under whose auspices the first edition of this work was issued, has in order that the publication should be continued, generously assigned to the publishers the copyright of the work. It is the earnest hope of the author that this work may be of real service to the profession and the warehousemen of our country. Barry Mohun. Washington, D. C, April 15th, 1914. 73544G PREFACE TO THE FIRST EDITION. 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 de- cisions afterward ; the latter are divided into a series of groups, each represented by a letter of the alphabet, and arranged 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 ; Difterence between a iDailment and a sale; Statute of limitations. B. Warehousemen, their duties, rights and liabilities in general ; Public and private warehousemen ; Ordinary care ; When liability 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 ; Procedure ; Evidence ; Pleading. C. Safe Deposit Boxes. D. Expressmen, transactions with warehousemen. E. I'^actors, transactions with warehousemen. VI PREFACE. F. Carriers, transact idiis with warcliouscnicn and ihcir liability as warehousemen. G. Cunernnient bonded warehouses. H. Storage charges; Lien; Sale; Contracts of storage construed. I. Segregation and commingling of stored property; Substitution of other property. K. Legal process against stored property. L. Replevin; Trover; Detinue. M. Property pledged with warehousemen. N. Loss or damage to stored property by fire, water, negligence, misdelivery, accident, theft, war, act of God; Procedure; Evi- dence ; Pleading. O. Measure of damages for loss, or damage to goods. P. Insurance; Insurable interest ; Warranty of "fire-proof," "frost- proof," etc. ; Contracts to keep insured. Q. Warehouse receipts; Definition; Requisites; Interi)retation ; When title passes; Estoppel by; Receipts of jjrivate warehouse- men; Exemptions in; Guaranty; Negotiability; What constitutes a bona fide holder; As collateral; Delivery of property without PREFACE. Vii surrender of receipt; Special and irregular receipts; Bogus and forged receipts; Procedure; Evidence; Pleading. R. Bills of lading; Definition; Liability 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; Doctrine of fellow servants ; Fraud and crimes of warehousemen. U. Constitutionality of statutes pertaining to warehousemen; Stat- utes 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 efl:'orts which have made possible the publication of this volume. Barry Moiiun. Washington, D. C. September 12, 1903. )^ CONTENTS. CHAPTER I. Uniform Warehouse Receipts. page act with annotations 1 CHAPTER n. Alabama. LAWS 20 DECISIONS 26 CHAPTER HI. Arizona. LAWS 42 DECISIONS 46 CHAPTER IV. Arkansas. LAWS 47 DECISIONS 50 CHAPTER V. California. LAWS S7 DECISIONS 67 CHAPTER VI. Colorado. LAWS 85 DECLSIONS 88 ix X CONTENTS. CHAPTER VII. CoNNECTICrT. PAGE LAWS 93 DECISIONS 94 CHAPTER VIII. Delaware. LAWS 99 DECISIONS 105 CHAPTER IX. District of Columbia. LAWS 108 DECISIONS 109 CHAPTER X. Florida. LAWS 113 DECISIONS 116 CHAPTER XI. Georgia. LAWS 118 DECISIONS 124 CHAPTER XII. Idaho. LAWS 150 DECISIONS 164 CHAPTER XIII. Illinois. LAWS 165 DECISIONS 195 CHAPTER XIV. Indiana. LAWS 227 DECISIONS 248 CONTENTS. Xi CHAPTER XV. Iowa. page LAWS 259 DECISIONS 270 CHAPTER XVI. Kansas. LAWS 278 DECISIONS 302 CHAPTER XVII. Kentl'ckv. LAWS 310 DECISIONS 324 CHAPTER XVIII. Louisiana. LAWS 344 DECISIONS 356 CHAPTER XIX. Maine. LAWS 368 DECISIONS 371 CHAPTER XX. Maryland. LAWS 374 DECISIONS 387 CHAPTER XXI. Massachusetts. LAWS 393 DECISIONS 403 CHAPTER XXII. Michigan. LAWS 416 DECISIONS 434 Xll CONTENTS. ClIAT'lM-.R XXI II. .Ml.NXliSOTA. PAGE LAWS 439 DECISIONS 488 CH.MTER XXIV. M ISSISSIIMM. LAWS 504 OECLSIONS 505 CHAPTER XXV. Missouri. LAWS 511 DECISIONS 549 CHAPTER XXVI. Montana. LAWS 564 DECISIONS 587 CHAPTER XXVII. Nebraska. laws 589 decisions 594 CHAPTER XXVIII. Nevada. LAWS ' 598 DECISIONS 598 CHAPTER XXIX. New Hampshire. LAWS 599 DECISIONS 599 CHAPTER XXX. New Jersey. LAWS 601 decisions 608 CONTENTS. Xlll CHAPTER XXXI. New Mexico. page LAWS 613 DECISIONS 613 CHAPTER XXXH. New York. LAWS 615 DECISIONS 632 CHAPTER XXXHL North Carolina. LAWS 677 DECISIONS 683 CHAPTER XXXIV. North Dakota. LAWS 689 DECISIONS 709 CHAPTER XXXV. Ohio. LAWS 717 DECISIONS 729 CHAPTER XXXVI. Oklahoma. LAWS 739 DECISIONS 760 CHAPTER XXXVII. Oregon. laws 762 decisions 772 CHAPTER XXXVIII. Pennsylvania. LAWS 779 decisions 786 XIV CONTENTS. CHAPTER XXXIX. RlIOI^K IsL.\ND. PAGE LAWS 799 DFCISIONS S02 CHAPTER XL. South Carolina. LAWS 805 decisions 814 CHAPTER XLI. South Dakota. LAWS 819 DECISIONS 833 CHAPTER XLH. Tennessee LAWS 835 decisions 844 CHAPTER XLHL Texas. LAWS 855 decisions 860 CHAPTER XLIV. Utah. LAWS 871 DECISIONS 871 CHAPTER XLV. Vermont. LAWS 873 DECISIONS 874 CHAPTER XLVI. Virginia. LAWS 877 DECISIONS 891 CONTENTS. XV CHAPTER XLVII. Washington. page LAWS 89:^ DECISIONS 911 CHAPTER XLVni. West Virginia. LAWS 917 decisions 917 CHAPTER XLIX. W^ISCONSIN. LAWS 920 DECISIONS 968 CHAPTER L. Wyoming. LAWS 977 DECISIONS 981 CHAPTER LI. territorial possessions. Alaska. LAWS 983 decisions 98.-) Hawaii. LAWS 986 decisions 987 Porto Rico. LAWS 988 DECISIONS 992 PjfiLii'i'iNE Islands. LAWS 994 decisions 994 Analytical Index 997 CHAPTER I UNIFORM WAREHOUSE RECEIPTS ACT The Uniform Warehouse Receipts Act as finally adopted by the Commissioners on Uniform State Laws in 1906 is given below. The act has been passed by Congress to I^e in force in the District of Columbia and by the legislatures in the following states: California, Colorado, Connecticut, Illinois, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mis- souri, Nebraska, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Ten- nessee, Utah, Vermont, \^irginia, Washington and Wisconsin. The act is also in force in Alaska and in the Philippine Islands. In several of the above mentioned states certain changes have been made in the uniform act. Each of such changes is noted at the beginning of the chapter containing the laws of the states in which the changes occur. *&' UNIFORM WAREHOUSE RECEIPTS ACT— PART I. THE ISSUE OF WAREHOUSE RECEIPTS Section i. — Persons IVho May Issue Receipts: Warehouse receipts may be issued by any warehouseman. Section 2. — Form of Receipts. Essential Terms: Warehouse receipts need not be in any particular form, but every such re- ceipt must embody witliin its written or printed terms: (a) The location of the warehouse where the goods are stored, (b) The date of issue of the receipt, (c) The consecutive number of the receipt, (d) A statement whether the goods received will be deliv- ered to the bearer, to a specified person, or to a specified person or his order, (e) The rate of storage charges, (f) A description of the goods or of the packages contain ing them, 1 1 2 w AKKiiorsi': KKci'.irrs act. (0-) The signature of the wareliouseman, which may be made by his authorized agent, (h) If the receipt is issued for goods of which the ware- houseman is owner, either solely or jointly or in common with others, the fact of such ownership, and (i) A statement of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien. If the precise amount of such advances made or of such liabil- ities incurred is, at the time of the issue of the receipt, unknown to the warehouseman or to his agent who issues it, a statement of the fact that advances have been made or liabilities incurred and the purpose thereof is sufficient. A warehouseman shall be liable to any person injured there- by, for all damage caused by the omission from a negotiable receipt of any of the terms herein required. A receipt or memorandum given by a warehouseman to his bailor, which shows that the property described therein was received from the bailor, by the warehouseman, for safe keeping, in the ordinary course of his business, is a sufficient warehouseman's receipt to entitle him, un- der this act, to require his bailor and an adverse claimant to interplead and settle their respective rights to the property, although the receipt may not embrace all of the terms set forth in section two of the act.— 7V. /. Title Guarantee and Trust Co. v. Rector, 76 N. J. E. 587. Section 3. — Form of Receipts. What Terms May Be In- serted: A warehouseman may insert in a receipt, issued by him, any other terms and conditions, provided that such terms and conditions shall not — (a) Be contrary to the provisions of this act. (b) In any wise impair his obligation to exercise that degree of care in the safe-keeping of the goods entrusted to him which a reasonably careful man would exercise in regard to similar goods of his own. A receipt given at the time of deposit of a hand bag at a parcel room contained a provision that the defendant bailee's liability was limited to $10.00. Held, this clause of the receipt impaired the bailee's obligation to exercise that degree of care in the safe keeping of the goods intrusted to it which a reasonably careful man would exercise in regard to similar goods of his own, and hence was a condition which the defendant had not, under this section, the legal right to insert in the receipt and it was there- fore void. In the receipt the conditions above mentioned were in fine print and were not called to plaintiff's attention. It was further held, under the circumstances, the plaintiff was not chargeable with knowledge of such conditions. 1 • 1 u Houghton, J., concurred in the opinion but took the view that the "Warehouse Law" was not applicable. Healy v. A^. Y. C. and H. R. R. Co., 138 N. Y. S. 287. WAREHOUSE RECEIPTS ACT. * Section 4. — Definition of Non-Negotiable Receipt: A receipt in which it is stated that the goods received will be delivered to the depositor, or to any other specified person, is a non-negotiable receipt. Section 5. — Definition of Negotiable Receipt: A receipt in which it is stated that the goods received will be delivered to the bearer, or to the order of any person named in such receipt is a negotiable receipt. No provision shall Ije inserted in a negotiable receipt that it is non-negotiable. Such provision, if inserted, shall be void. Section 6. — Duplicate Receipts Must Be So Marked: When more than one negotiable receipt is issued for the same goods, the word "duplicate" shall be plainly placed upon the face of every such receipt, except the one first issued. A warehouseman shall be liable for all damage caused by his failure so to do to any one who purchased the subsequent receipt for value supposing it to be an original, even though the purchase be after the de- livery of the goods by the warehouseman to the holder of the original receipt. Section 7. — Failure to Mark "Not Negotiable:" A non-nego- tiable receipt shall have plainly placed upon its face by the ware- houseman issuing it "non-negotiable," or "not negotiable." In case of the warehouseman's failure so to do, a holder of the receipt who i)urchase(l it for value supposing it to be negotiable, may, at his option, treat such receipt as imposing upon the ware- houseman the same liabilities he would have incurred had the receipt been negotiable. This section shall not apply, however, to letters, memoranda, or written acknowledgments of an informal character. PART II OBLIGATIONS AND RIGHTS OF WAREHOUSEMEN UPON THEIR RECEIPTS Section 8. — Obligation of Warehouseman to Deliver: A ware- houseman, in the absence of some lawful excuse provided by this act, is bound to deliver the goods upon a demand made either by the holder of a receipt for the goods or by the depositor, if such demand is accompanied with — (a) An offer to satisfy the warehouseman's lien, (b) An offer to surrender the receipt if negotiable, with * WAKE HOUSE RECEIPTS ACT. such iiulorsements as would be necessary for the negotiation of tlie receipt, and (c) A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the warehouseman. In case the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor so accompanied, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal. Where stored property has been destroyed a demand for its return is not necessary before bringing suit. Buffalo Grain Co. v. Sowerby, 195 N. Y. 355, 358. Section p. — Justification of Warehouseman in Delivering: A warehouseman is justified in delivering the goods, subject to the provisions of the three following sections, to one who is — (a) The person lawfully entitled to the possession of the goods, or his agent, (b) A person who is either himself entitled to delivery by the terms of a non-negotiable receipt issued for the goods, or who has written authority from the person so entitled either in- dorsed upon the receipt or written upon another paper, or (c) A person in possession of a negotiable receipt by the terms of which the goods are deliverable to him or order or to bearer, or which has been endorsed to him or in blank by the person to whom delivery was promised by the terms of the re- ceipt or by his mediate or immediate indorsee. Section lO. — Warehouseman's Liability for Misdelivery: Where a warehouseman delivers the goods to one who is not in fact lawfully entitled to the possession of them, the warehouse- man shall be liable as for conversion to all having a right of prop- erty or possession in the goods if he delivered the goods other- wise than as authorized by subdivisions (b) and (c) of the pre- ceding section and though he delivered the goods as authorized by said subdivisions he shall be so liable, if prior to such delivery he had either Ca) Been requested, by or on behalf of the person lawfully entitled to a right of property or possession in the goods, not to make such delivery, or (h) Had information that the delivery about to be made was to one not lawfully entitled to the possession of the goods. Section ii. — Negotiable Receipts Must Be Cancelled When WAREHOUSE RECEIPTS ACT. » Goods Delivered: Except as provided in Section 36, where a warehouseman delivers goods for which he had issued a negoti- able receipt, the negotiation of which would transfer the right to the possession of the goods, and fails to take up and cancel the receipt, he shall be liable to any one who purchases for value in good faith such receipt, for failure to deliver the goods to him, whether such purchaser acquired title to the receipt before or after the delivery of the goods by the warehouseman. Section 12. — Negotiable Receipts Must Be Cancelled or Marked When Part of Goods Delivered: Except as provided in Section 36, where a warehouseman delivers part of the goods for which he had issued a negotiable receipt and fails either to take up and cancel such receipt, or to place plainly upon it a statement of what goods or packages have been delivered he shall be liable, to any one who purchases for value in good faith such receipt, for failure to deliver all the goods specified in the receipt, whether such purchaser acquired title to the receipt be- fore or after the delivery of any portion of the goods by the warehouseman. Section 7j. — Altered Receipts: The alteration of a receipt shall not excuse the warehouseman who issued it from any lia- bility if such alteration was (a) Immaterial, (b) Authorized, or (c) Made without fraudulent intent. If the alteration was authorized, the warehouseman shall be liable according to the terms of the receipt as altered. If the alteration was unauthorized, but made without fraudulent in- tent, the warehouseman shall be liable according to the terms of the receipt, as they were before alteration. Material and fraudulent alteration of a receipt shall not ex- cuse the warehouseman who issued it from liability to deliver, according to the terms of the receipt as originally issued, the goods for which it was issued, but shall excuse him from any other liability to the person who made the alteration and to any person who took with notice of the alteration. Any purchaser of the recei])t for value without notice of the alteration shall ac- quire the same rights against the warehouseman which such pur- chaser would have acquired if ihc receipt had not been altered at the time of the purchase. WAKKllDUSK RECEIPTS ACT. Section 14.— Lost or Destroyed Receipts: Where a negotiable receipt has been lost or destroyed, a court of competent jurisdic- tion niav order the delivery of tlio goods upon satisfactory proof of such loss or destruction and upon the giving of a l)ond with sufficient sureties to be approved by the court to protect the ware- houseman from any liability or expense, which he or any per- son injured by such delivery may incur by reason of the original receipt remaining outstanding. The court may also in its dis- cretion order the payment of the warehouseman's reasonable costs and counsel fees. The delivery of the goods under an order of the court as pro- vided in this section, shall not relieve the warehouseman from liability to a person to whom the negotiable receipt has been or shall be negotiated for value without notice of the proceedings or of the delivery of the goods. Section ij.— Effect of DupUcaie Receipts: A receipt upon the face of which the word "duplicate" is plainly placed is a repre- sentation and warranty by the warehouseman that such receipt is an accurate copy of an original receipt properly issued and uncancelled at the date of the issue of the duplicate, but shall impose upon him no other liability. Section 16. — Warehouseman Can Not Set Up Title in Him- self: No title or right to the possession of the goods, on the part of the warehouseman, unless such title or right is derived directly or indirectly from a transfer made by the depositor at the time of or subsequent to the deposit for storage, or from the warehouseman's lien, shall excuse the warehouseman from lia- bility for refusing to deliver the goods according to the terms of the receipt. Section 17. — Interpleader of Adverse Claimants: If more than one person claims the title or possession of the goods, the ware- houseman may, either as a defense to an action brought against him for non-delivery of the goods, or as an original suit, which- ever is appropriate, require all known claimants to interplead. Where a complaint alleges in substance that plaintiff is a warehouse- man and as such has on storage certain personal property which was de- posited with it by two certain named persons ; that a corporation claimed ownership of the property by virtue of an assignment from the depositors and demanded possession of the same from plaintifif and had threatened to hold plaintifif responsible if delivery were not made in accordance with its demand; that two persons other than the depositors claimed and demanded the property from plaintifif; that one of the named defendants was sheriff of the county and claimed to be entitled to the possession of WAREHOUSE RECEIPTS ACT. ' the property by virtue of a warrant of attachment issued in an action pending between two of the claimants; that there are pending several actions between claimants of the property; it was held the facts alleged brought the case within the above and the following section. Manhattan Storage and IVarehouse Co. v. Benguiat Art Museum et al., 139 N. Y. S. 1073. ^. ^ ., ... A receipt or memorandum given by a warehouseman to his bailor, which shows that the property described therein was received from the bailor, bv the warehouseman, for safe keeping, in the ordinary course of his business, is a sufficient warehouseman's receipt to entitle him, under this act. to require his bailor and an adverse claimant to interplead and settle their respective rights to the property, although the receipt may not embrace all of the terms set forth in section two of this act. — A''. /. Title Guarantee and Trust Co. v. Rector, 76 N. J. E. 587. Section i8. — Warehouseman has Reasonable Time to Deter- mine Validity of Claims : If some one other than the depositor or l)erson claiming under him has a claim to the title or possession of the goods, and the warehouseman has information of such claim, the warehouseman shall be excused from liability for refusing to deliver the goods, either to the depositor or person claiming under him or to the adverse claimant, until the ware- houseman has had a reasonable tiine to ascertain the validity of the adverse claim or to bring legal proceedings to compel all claimants to interplead. Facts stated which were held not to have afforded the defendant ware- houseman a reasonable time to ascertain the validity of the adverse claim or to bring legal proceedings to compel claimants to interplead as pro- vided in this section. Zuher v. Mehrle, 112 N. Y. S. 1093. Section ip. — Adverse Title Is No Defense Except As Above Provided: Except as provided in the two preceding sections and in sections 9 and 36, no right or title of a third person shall be a defense to an action brought by the depositor or person claim- ing under him against tiie warehouseman for failure to deliver the goods according to the terms of the receipt. Section 20. — Liability for Non-Existence or Misdiscription of Goods: A warehouseman shall be liable to the holder of a re- ceipt for damages caused by the non-existence of the goods or by the failure of the goods to correspond with the description there- of in the receipt at the time of its issue. If. however, the goods are described in a receipt merely by a statement of marks or labels upon them, or upon packages containing them, or by a statement that the goods are said to be goods of a certain kind, or that the packages containing the goods are said to contain goods of a certain kind, or by words of like purport, such state- ments, if true, shall not make liable the warehouseman issuing » WAREHOUSE RECEU'TS ACT. the receipt, although the goods are not of the kind which the marks or Libels upon them indicate, or of the kind they were said to be by the depositor. Scctiou 21. — Liability for Care of Goods: A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care. This section makes no change in the common law doctrine concerning a warehouseman's liabilitj', and is merely declaratory thereof. Levine v. D. Wolff & Co., 78 N. J. L. 306. See" also Mortimer v. Otto, 206 N. Y. 89, and H. J. Keith Co. v. Booth Fisheries Co., 87 All. 715. \ warehouseman in the exercise of reasonable care, owes a duty to his patrons of making reasonable inspection from time to time to see that the building remains safe and in a proper condition. Buffalo Grain Co. v. Sowerby, \95 N. Y. 355, 358. A receipt given at the time of deposit of a hand bag at a parcel room contained a provision that the defendant bailee's liability was limited to $10.00. Held, that this clause of the receipt impaired the bailee's obliga- tion to exercise that degree of care in the safe keeping of the goods in- trusted to it which a reasonably careful man would exercise in regard to similar goods of his own, and hence was a condition which the defendant had not, under this section, the legal right to insert in the receipt and it was therefore void. In the receipt the conditions above mentioned were in fine print and were not called to plaintiff's attention. It was further held, under the circumstances, the plaintiff was not chargeable with knowledge of such conditions. Houghton, J., concurred in the opinion but took the view that the "Warehouse Law" was not applicable. Healy v. A^. Y. C. and H. R. R. Co.. 138 N. Y. S. 287. Section 22. — Goods Must Be Kept Separate: Except as pro- vided in the following section, a warehouseman shall keep the goods so far separate from goods of other depositors, and from other goods of the same depositor for which a separate receipt has been issued, as to permit at all times the identification and re- delivery of the goods deposited. Section 2^. — Fungible Goods May Be Commingled, If Ware- houseman Authorised: If authorized by agreement or by cus- tom, a warehouseman may mingle fungible goods with other goods of the same kind and grade. In such case the various de- positors of the mingled goods shall own the entire mass in com- mon and each depositor shall be entitled to such portion there- of as the amount deposited by him bears to the whole. Section 24. — Liability of Warehouseman to Depositors of Commingled Goods: The warehouseman shall be severally lia- WAREHOUSE RECEIPTS ACT. » ble to each depositor for the care and re-delivery of his share of such mass to the same extent and under the same circum- stances as if the goods had been kept separate. Section 25. — Attachment or Levy upon Goods for Which a Negotiable Receipt Has Been Issued: If goods are delivered to a warehouseman by the owner or by a person whose act in conveying the title to them to a purchaser in good faith for value would bind the owner, and a negotiable receipt is issued for them, they can not thereafter, while in the possession of th( warehouseman, be attached by garnishment or otherwise, or be levied upon under an execution, unless the receipt be first surren- dered to the warehouseman, or its negotiation enjoined. The warehouseman shall in no case be compelled to deliver up tht actual possession of the goods until the receipt is surrendered to him or impounded by the court. Section 26. — Creditors' Remedies to Reach Negotiable Re- ceipts: A creditor whose debtor is the owner of a negotiable re- ceipt shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such re- ceipt or in satisfying the claim by means thereof as is allowed at law or in equity, in regard to property which can not readily be attached or levied upon by ordinary legal process. Section 2/. — What Claims Are Included in the Warehouse- man's Lien: Subject to the provisions of Section 30, a ware- houseman shall have a lien on goods deposited or on the proceeds thereof in his hands, for all lawful charges for storage and pres- ervation of the goods; also for all lawful claims for money ad- vanced, interest, insurance, transportation, labor, weighing, coop- ering and other charges and expenses in relation to such goods ; also for all reasonable charges and expenses for notice, and advertisements of sale, and for sale of the goods where default has been made in satisfying the warehouseman's lien. The right to a lien given hy this section is limited to a "warehouse- man." Under its terms a casual bailee for hire is not entitled to a lien for storage charges. Alton v. New York Taxicab Co., 121 N. Y. S. 271. For history and rationale of this lien see Trust v. Pirsson, 1 Hilt 292. 297; Ri-c'ara v. Ghio. 3 E. D. Smith 264. 267; cited with approval in Merritt v. Peirano, 10 App. Div. 563, 565 ; Lyungstrandh v. Haakcr Co., 16 Misc. Rep. 387. See also Robinson v. Kaplan, 21 Misc. Rep. 686, 689. Section 28. — Against What Property the Lien May Be En- forced: Subject to the provisions of Section 30 a warehouse- man's lien may be enforced — 10 WAUKllULSK KliCliirrS ALT. (a) Against all goods, whenever deposited, belonging to the person who is liable as debtor for llie claims in regard to which the lien is asserted, and (b) Against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims in regard to which the lien is asserted if such per- son had been so entrusted with the possession of the goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have been valid. There is nothing in this section which is intended to give a warehouse- man a lien upon goods belonging to another and stored by a stranger in fraud of the true owner's rights. FarrcU v. Harlem Terminal Storage Warehouse Co.. 127 N. Y. S. 306. Where there is a recorded chattel mortgage under which the mortgagee is entitled to possession of the goods upon default by mortgagor and the goods are stored by the mortgagor the warehouseman does not acquire a lien upon such goods for his charges. The possession of the goods by the mortgagor was not such that a pledge of them by him would have been valid, even if the pledgee took the goods in good faith for value. Ludwig, Baumann & Co. v. Roth, 123 N. Y. S. 191. Section 2p. — How the Lien May Be Lost: A warehouseman loses his lien upon goods — (a) By surrendering possession thereof, or (b) Bv refusing to deliver the goods when a demand is made with which he is bound to comply under the provisions of this act. Section 30. — Negotiable Receipt Must State Charges for IVhich Lien is Claimed: If a negotiable receipt is issued for goods, the warehouseman shall have no lien thereon, except for charges for storage of those goods subsequent to the date of the receipt, unless the receipt expressly enumerates other charges for which a lien is claimed. In such cases there shall be a lien for the charges enumerated so far as they are within the terms of Section 27, although the amount of the charges so enumerated is not stated in the receipt. Section 31. — Warehouseman Need Not Deliver Until Lien Ls Satisfied: A warehouseman having a lien valid against the per- son demanding the goods may refuse to deliver the goods to him until the lien is satisfied. Section 32. — W arehouseman' s Lien Does Not Preclude Other Remedies: Whether a warehouseman has or has not a lien up- on the goods, he is entitled to all remedies allowed by law to a creditor against his debtor, for the collection from the depositor WAREHOUSE RECEIPTS ACT. 11 of all charges and advances which the depositor has expressly or impliedly contracted with the warehouseman to pay. Section jj. — Satisfaction of Lien By Sale: A warehouse- man's lien for a claim which has l:)ecome due may be satisfied as follows : The warehouseman shall give a written notice to the person on whose account the goods are held, and to any other person known by the warehouseman to claim an interest in the goods. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business or abode of the person to l^e notified. The notice shall contain — (a) An itemized statement of the warehouseman's claim, showing the sum due at the time of the notice and the date or dates when it became due, (b) A brief description of the goods against which the lien exists, (c) A demand that the amount of the claim as stated in the notice, and of such further claim as shall accrue, shall be paid on or before a day mentioned, not less than ten days from the delivery of the notice if it is personally delivered, or from the time when the notice should reach its destination, according to the due course of post, if the notice is sent by mail, and (d) A statement that unless the claim is paid within the time specified the goods will l)e advertised for sale and sold by auction at a specified time and place. In accordance with the terms of a notice so given, a sale of the goods by auction may be had to satisfy any valid claim of the warehouseman for which he has a lien on the goods. The sale shall be had in the place where the lien was acquired, or, if such place is manifestly unsuitaljle for the purpose, at the near- est suitable place. After the time for the payment of the claim specified in the notice to the depositor has elapsed, an advertise- ment of the sale, describing the goods to be sold, and stating the name of the owner or person on whose account the goods are held, -.im] the time and place of the sale, shall be published once a week for two consecutive weeks in a newspaper published in the place where such sale is to be held. The sale shall not be held less than fifteen days from the time of the first publication. If tliere is no new.spaper published in such place, the advertise- 12 WAKEIlonSE RECEIPTS ACT. uieiit shall he posted at least ten days before such sale in not less tlian six conspicuous places therein. From the proceeds of such sale the warehouseman shall satis- fy his lien, including the reasonable charges of notice, advertise- ment, and sale. The balance, if any, of such proceeds shall be held by the warehouseman, and delivered on demand to the person to whom he would have been bound to deliver or justi- fied in delivering the goods. At any time before the goods are so sold any person claiming a right of property or possession therein may pay the warehouse- man the amount necessary to satisfy his lien and to pay the rea- sonable expenses and liabilities incurred in serving notices and advertising and preparing for the sale up to the time of such payment. The warehouseman shall deliver the goods to the person making such payment if he is a person entitled, under the provisions of this act, to the possession of the goods on payment of charges thereon. Otherwise the warehouseman shall retain possession of the goods according to the terms of the original contract of deposit. Section ^4.- — Perishable and Hazardous Goods: If goods are of a perishable nature, or by keeping will deteriorate greatly in value, or by their odor, leakage, inflammability, or explosive na- ture, will be liable to injure other property, the warehouseman may give such notice to the owner, or to the person in whose name the goods are stored, as is reasonable and possible under the circumstances, to satisfy the lien upon such goods, and to remove them from the warehouse, and in the event of the fail- ure of such person to satisfy the lien and to remove the goods within the time so specified, the warehouseman may sell the goods at public or private sale without advertising. If the warehouse- man after a reasonable effort is unable to sell such goods, he may dispose of them in any lawful manner, and shall incur no liabil- ity by reason thereof. The proceeds of any sale made under the terms of this section shall be disposed of in the same way as the proceeds of sales made under the terms of the proceeding section. Section 55. — Other Methods of Enforcing Liens: The remedy for enforcing a lien herein provided does not preclude any other remedies allowed by law for the enforcement of a lien against personal property nor bar the right to recover so much of the 1Q WAREHOUSE RECEIPTS ACT. warehouseman's claim as shall not be paid by the proceeds of the sale of the property. Section 36.— Effect of Sale: After goods have been lawfully sold to satisfy a warehouseman's lien, or have been lawfully sold or disposed of because of their perishable or hazardous na- ture, the warehouseman shall not thereafter be liable for failure to deliver the goods to the depositor, or owner of the goods, or to a holder of the receipt given for the goods when they were deposited, even if such receipt be negotiable. PART III NEGOTIATION AND TRANSFER OF RECEIPTS Section 3/.— Negotiation of Negotiable Receipts by Delivery: A negotiable receipt may be negotiated by delivery— (a) Where, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the bearer, or (b) Where, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of a specified per- son, and such person or a subsequent indorsee of the receipt has indorsed it in blank or to bearer. Where, by the terms of a negotiable receipt, the goods are de- liverable to bearer or where a negotiable receipt has been in- dorsed in blank or to bearer, any holder may indorse the same to himself or to any other specified person, and in such case the receipt shall thereafter be negotiated only by the indorsement of such indorsee. Section 38.— Negotiation of Negotiable Receipts by Indorse- ment: A negotiable receipt may be negotiated by the indorsement of the person to whose order the goods are, by the terms of the receipt, deliverable. Such indorsement may be in blank, to bear- er or to a specified person. If indorsed to a specified person, it may be again negotiated by the indorsement of such person in blank, to bearer or to another specified person. Subsequent ne- gotiation may be made in like manner. Section ^g.— Transfer of Receipts: A receipt which is not in such form that it can be negotiated by delivery may be trans- ferred by the holder by delivery to a purchaser or donee. A non-negotiable receipt cannot be negotiated, and the indorse- ment of such a receipt gives the transferee no additional right. !•* WAUlillDUSl': KECEll'TS ACT. Section /(). — Who Miiy Negotiate a Recei/^t: A negotiable receipt ni;i\ bo iici^otiated — (a) r>y the owner tliereof. or (b) By any person to whom tlie possession or custody of the receipt has been entrusted by the owner, if, by tlie terms of the receipt, the warehouseman undertakes to debxer the goods to the order of the person to whom the possession or custody of the receipt lias been entrusted, or if at tlie time of such entrusting the receipt is in such form that it may be negotiated l)y debvery. Bills of Lading were t)lrtained from l)ank wliere they had l)een ijk'dged to secure advances, by the giving of "trust receipts," by the pledgor. Such "trust receipts" inter alia provided that the pledgor obtained the bills of lading for the cotton mentioned, and if the cotton were sold he would hold the proceeds as trustee for the bank. The pledgor, having thus secured the bills of lading, stored the cotton and obtained negotiable warehouse receipts therefor which he pledged with another bank ; which bank relied upon the above section to support its contention that the pledge to it was valid. The court held the pledge of the warehouse receipts void, that the pledgor had no authority under the "trust receipts" to store the cotton, obtain negotiable warehouse receipts therefor and pledge them for loans and that in order to pass title under this section and sections 41 and 47 of the Uniform Warehouse Receipts Act, even to one taking innocently, there must be in existence a valid warehouse receipt for goods stored by the true owner or by some one having the right and authority to store them for him. A receipt issued by a ware- houseman without the authority, knowledge or consent of the owner of the goods can have no more effect than a forged bill or note. In re Dreuil & Co. (La.). 205 Fed. 568. Section 41. — Rights of Person to Whom a Receipt Has Been Negotiated: A person to whom a negotiable receipt has been duly negotiated acquires thereby — (a) Such title to the goods as the person negotiating the re- ceipt to him had or had ability to convey to a purchaser in good faith for value, and also such title to the goods as the depositor or person to whose order the goods were to be delivered by the terms of the receipt had or had ability to convey to a purchaser in good faith for value, and (b) The direct obligation of the warehouseman to hold pos- session of the goods for him according to the terms of the re- ceipt as fully as if the warehouseman had contracted directly with him. See note under section 40. Section 42. — Rights of Person to Whom a Receipt Has Been Transferred: A person to whom a receipt has been transferred WAREHOUSE RECEIPTS ACT. ' ^^ but not negotiated, acquires thereby, as against the transferor, the title of the goods, subject to the terms of any agreement with the transferor. If the receipt is non-negotiable such person also acquires the right to notify the warehouseman of the transfer to him of such receipt, and thereby to acquire the direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt. Prior to the notification of the warehouseman by the trans- feror or transferee of a non-negotiable receipt, the title of the transferee to the goods and the right to acquire the obligation of the warehouseman may be defeated by the levy of an attach- ment or execution upon the goods by a creditor of the transferor, or by a notification to the warehouseman by the transferor or a subsequent purchaser from the transferor of a subsequent sale of the goods by the transferor. Section 43.— Transfer of Negotiable Receipt Without Indorse- ment: Where a negotiable receipt is transferred for value by delivery, and the indorsement of the transferor is essential for negotiation, the transferee acquires a right against the transferor to compel him to indorse the receipt, unless a contrary intention appears. The negotiation shall take effect as of the time when the indorsement is actually made. Section 44.— Warranties on Sale of Receipt: A person who for value negotiates or transfers a receipt by indorsement or de- livery, including one who assigns for value a claim secured by a receipt, unless a contrary intention appears, warrants — (a) That the receipt is genuine, (b) That he has a legal right to negotiate or transfer it, (c) 'J'hat he has knowledge of no fact which would impair the validity or worth of the receipt, and (d) That he has a right to transfer the title to the goods and that the goods are merchantable or fit for a particular purpose whenever such warranties would have been imi)lie(l, if the con- tract of the parties had been to transfer without a rcceijit the goods represented thereby. Section 45.—lndorser Not a Guarantor: The indorsement of a receipt shall not make the indorser liable for any failure on u; WAKEllOUSE RECEIPTS ACT. the part o\ tlio warcliouseinan or previous indorsers of tlie re- ceijit to tullil their respeeti\e obligations. Section 40. — No Warranty Implied from Accepting Payment of a Debt: A mortgagee, pledgee or holder for seeurity of a re- ceipt who ill good faith demands or receives payment of the debt for which such receipt is security, whether from a party to a (.Iraft drawn for such del)l or from any other person, shall not by so doing be deemed to represent or to warrant the genu- ineness of such receipt or the quantity or quality of the goods therein described. Section 47. — When Negotiation Not Impaired by Fraud, Mis- take, or Duress: The validity of the negotiation of a receipt is not impaired by the fact that such negotiation was a breach of duty on the part of the person making the negotiation, or by the fact that the owner of the receipt was induced by fraud, mis- take, or duress to entrust the possession or custody of the re- ceipt to such person, if the person to whom the receipt was ne- gotiated, or a person to whom the receipt was subsequently ne- gotiated, paid value therefor, without notice of the breach of duty, or fraud, mistake or duress. See note under section 40. Section 48. — Subsequent Negotiation: Where a person hav- ing sold, mortgaged, or pledged goods which are in a warehouse and for which a negotiable receipt has been issued, or having sold, mortgaged, or pledged the negotiable receipt representing such goods, continues in possession of the negotiable receipt, the subsequent negotiation thereof by that person under any sale, or other disposition thereof to any person receiving the same in good faith, for value and without notice of the previous sale, mortgage or pledge, shall have the same effect as if the first pur- chaser of the goods or receipt had expressly authorized the sub- sequent negotiation. Section 4p. — Negotiation Defeats Vendor's Lien: Where a negotiable receipt has been issued for goods, no seller's lien or right of stoppage in transitu shall defeat the rights of any pur- chaser for value in good faith to whom such receipt has been negotiated, whether such negotiation be prior or subsequent to the notification to the warehouseman who issued such receipt of the seller's claim to a lien or right of stoppage in transitu. Nor WAREHOUSE RECEIPTS ACT. 1'^ shall the warehouseman be obliged to deliver or justified in delivering the goods to an unpaid seller unless the receipt is first surrendered for cancellation. PART IV CRIMINAL OFFENSES Section 30. — Issue of Receipt for Goods Not Received: A warehouseman, or any officer, agent, or servant of a warehouse- man, who issues or aids in issuing a receipt knowing that the goods for which such receipt is issued have not been actually received by such warehouseman, or are not under his actual control at the time of issuing such receipt, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment not exceeding five years, or by a fine not ex- ceeding five thousand dollars, or by both. Section 5/. — Issue of Receipt Containing False Statement: A warehouseman, or any officer, agent or servant of a warehouse- man who fraudulently issues or aids in fraudulently issuing a receipt for goods knowing that it contains any false statement, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both. Section 52. — Issue of Duplicate Receipts Not So Marked: A warehouseman, or any officer, agent, or servant of a warehouse- man, who issues or aids in issuing a duplicate or additional nego- tiable receipt for goods knowing that a former negotiable receipt for the same goods or any part of them is outstanding and un- cancelled, without plainly placing upon the face thereof the word "Duplicate," except in the case of a lost or destroyed receipt after proceedings as provided for in Section 14, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment not exceeding five years, or by a fine not exceeding five thousand dollars, or by both. Prior legislation providing a different penalty was repealed by the enactment of the above section. State v. Gambrill, 115 Md. 506. Section 55. — Issue for Warehouseman's Goods of Receipts Which Do Not State That Fact: Where there are deposited with or held by a warehouseman goods of which he is owner, either solely or jointly or in common with others, such ware- houseman, or any of his officers, agents, or servants who, knowing 2 18 WAUElKniSE RECEIPTS ACT. this ownership, issues or aids in issuing a negotiable receipt for such goods which docs not stale such ownership, shall be guilty of a crime. an defend after notice, will he a suffi- eient defense in any suhsecpient action by the bailor. In such a case the rule that the bailee cannot dispute the title of his bailor does not apply. The judgment there would l)e conclusive of the superiority of the title of the adverse claimant. Powell v. Robin- son & Led yard, 76 Ala. 42.S ; Croszvell v. Lehman, Dnrr & Co., 54 Ala. v^63 ; Calhoun x. Thonipson, 56 Ala. 166; Thompson & Co. V. Union W'arelwuse Co.. 110 Ala. 499. Same — JVarehouseman must deliver to bailor or his assignee — May be compelled to deliver to true ozvner: — 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 person 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. Croszvell v. Lehman, Durr & Co., 54 Ala., 363. Conversion — Delivery of mortgaged goods to holder of receipt — Recordation of mortgage constitutes notice: — The defendants, warehousemen, had stored certain grain in their warehouse and it appeared that at the time of receiving the grain it was mort- gaged to the plaintiff, and that the mortgage thereof had been duly recorded, as required by the statutes of this state. Subse- quently, the defendant delivered the grain to a third party who had become the holder of the warehouse receipt therefor. It was held, that the fact that the mortgage was recorded was con- structive notice to the defendants of the interest of the plaintiff, and was as binding on them as actual notice would have been, and the delivery to the holder of the receipt was a conversion of the grain for which the defendant was liable. Hudmun & Bros. V. Dn Bose, 85 Ala. 446; Pippin v. Farmers Warehouse Co., 51 So. 882. Action of assumpsit by zvarehousemen, zvhen maintainable: — 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. Carter & Hozvell, 25 Ala. 47^. Evidence — Opinion: — Where cotton was destroyed by fire, the following opinion was held to be properly receivable in evidence. ALABAMA DECISIONS. 31 it being first shown that the witness had been engaged in the cotton business 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 extinguisiiment would have been improbable if not im- possible. Seals y. 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 transporta- tion, the complaint contained two counts, one on the contract of common carriers, the other on a contract of warehouseman with- out hire, it appeared that the goods had been lost, while stored in the company's warehouse and after the plaintiff had had an opportunity 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 vr G. R. R. Co. v. Prezvitt, 46 Ala. 63. H. Storage charges — Performance within one year — Promise by a third person to pay same — Statute of frauds: — A warehouse- man sued a vendor for storage charges due on cotton which the former had shipped after receiving the promise of the defendant that he would pay the same. It was held, that the contract was not within that provision of the statute 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 plaintifif, the defendant made the promise and the plaintifif surrendered his lien on the cotton in considera- tion f)f the promise of the defendant to secure him in payment of his charges. The contract by which this object was accom- plished was supported by considerations moving directly between the parties and, although it might be said to be in form of an undertaking 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. IVebb, 87 Ala. 59.3. 32 ALA15AMA DECISIONS. Scviic — Court of equity without jurisdiction to regulate or pre- scribe: — The prescribing of rates of charges for pul^Hc service corporations or corporations conducting a business "affected with a pubhc interest" is a legiskitive and not a judicial function ; hence a court of equity is without jurisdiction, under the laws of this state, to restrain a public warehouseman from collecting alleged excessive charges in the absence of laws prescribing rates of storage. Gulf Compress Co. v. Harris, Cortner & Co., 48 So. 477.^ Same — // excessive, action at law for money had and receivea is proper remedy not bill in equity to restrain: — Complainants sought to restrain respondents, who weie engaged in the com- press and warehousing business, from making what was allegea to be excessive charges which would prove "practically ruinous" to complainants if they were obliged to pay the same. In the absence of a statute prescribing rates of storage the court hehi the bill must be dismissed as complainant had a plain, adequate and complete remedy at law for any excessive charges in an action for money had and received. Id. 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 accrued storage charges. The defendant contended, that as the custom was shown to be that the warehousemen did not demand storage charges until the cotton was ordered out, and that as in this case the cotton, having been burned, was never ordered out of the warehouse, that therefore there was no valid 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 convenience 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. Chaffin, 102 Ala. 382. Trover — Not maintainable against warehouseman where there is simply a failure to deliver on demand — Conversion — Gist of ALABAMA DECISIONS. ^^ action : — Where a warehouseman fails to deliver on demanO goods intrusted 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 & Son v. Hurt. 114 Ala. 146; Ala. & Tenn. River R. R. Co. v. Kidd, 35 .A.la. 209; Baker v. Malone & Sons, 126 Ala. 510. Same — M'^ill not lie where goods are taken by 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 must contain averment of ownership: — Where a complainant, in an action of tro\er, failed to aver that the persons, from whom the plaintiff was alleged to have pur- chased 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, \27 Ala. 296. Same — IVarehouseman may maintain — Warehouse receipt: — A warehouseman may maintain, in his own name, an action of trover against one who has converted property intrusted to him as bailee. In such case, where the warehouseman is the holder of the warehouse receipt which he issued for the goods, it is not necessary for him to show that the receipt has been indorsed to him in order to pass title to the property. Baker v. Troy Compress 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 was 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. 3 34 ALABAMA DECISIONS. .liiwrican P'uj hoii Sforogc Warrant Co. v. German, Exec, et al., lib Ala. 194. N. Loss by fire: — A warehouseman is not liable for the value of goods destroyed by tire unless it can be shown that the loss occurred througli his negligence. Seals v. Edmonson, 71 Ala. 509. Same — Eailnrc to sell cotton within a reasonable tirne — 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 plaintiffs attempted to hold the defendants liable on the ground that, having failed to sell the cotton within a reason- able 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 the cotton within a reasonable time after being instructed so to do, that its subsequent loss by fire could not be regarded as the natural and proximate conse- quences of the delay in selling. That, the burning of the cotton was an accidental or collateral injury, not usually following the result of such delay, that the defendants as commission mer- chants would be 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 happened to be con- temporaneous. Lehman, Durr & Co. v. Pritchett, 84 Ala. 512. (Doctrine of Patterson v. Wallace, 1 Stew. 48, not followed.) Dougherty v. Am. Un. Tel. Co., 75 Ala. 168; East 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: — 'Tf it was a term of the plaintiffs' contract, that their warehouse should be fireproof, and the de- fendant's cotton was lost by the plaintiffs' failure 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. Negligence — Insufficient allegations in complaint charging loss of compress receipts by warehousemen — Demurrer: — The plain- ALABAMA DECISIONS. 35 tiff, a cotton broker, sued the defendant, a warehouseman, in tort, alleging that plaintiff during the present and previous seasons had deposited cotton in defendant's warehouse and that it had become an established custom between them that the defendant would, when bales of cotton were ordered out by the plaintiff, deliver such bales to a compress company, taking receipts there- for, and that subsequently, upon presentation of defendant's warehouse receipts for the given number of bales, the defendant would deliver to plaintiff the compress receipts for the number of bales represented by the defendant's warehouse receipt ; that in respect of six bales it was discovered that defendant did not have compress receipts for the same, although plaintiff had ordered them shipped out. A demurrer was interposed upon, among other grounds, that the complaint failed to state a cause of action and that the negligence alleged against defendant arc conclusions and fail to show sufficientlv of what defendant's negligence consisted. It was held that if the delivery of plain- tiff's cotton to the compress company was authorized, that de- livery ended all duty and liability which the law imposed upon the defendant as warehouseman. In reference to the custom it was held to be necessary to allege and prove not only the exist- ence of the custom but that such custom entered into and became a part of the contract between the parties. The complaint was held to be demurrable not only on the other grounds relied upon but also because it was insufficient to support a cause of action. Dashinsky & Co. v. Seals, 135 Ala. 357. Evidence as to necessity of presence of zvatchman: — 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 present 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. Ed- ynonson, 7\ Ala. 509. Q. Warehouse receipt — Issued in name of warehouseman — Pledge: — A warehouseman owning goods deposited in his own warehouse had receipts issued therefor and signed by his clerk 36 ALABAMA DECISIONS. The receipts were pledged as collateral security without being indorsed. It was lieUl that tlic 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. Same — Negotiability — Not negotiable in sense of bills of ex- change — A^ot governed by laiv 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 payment, an action was brought by the owner of the goods against the warehouseman to recover their possession. The pledgee inter- posed the claim that as the receipts were negotiable he had taken title to the property 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 ad- vanced upon by us for its full value." It was held that the ware- house 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 posses- sion 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 warehouseman" means only goods deposited by a person having title thereto. This section of the act proceeds upon the assumption that the receipt was so issued. Commercial Bank of Selma v. Hurt, 99 Ala. 130; Allen, Bethtme & 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 warehouse- man for the recovery of cotton represented by a receipt of which he was a bona fide holder. It appeared that the receipt had been issued to one who had transferred it to plaintiff's transferror in consideration of a gambling debt. Such person intervened in the suit and claimed title to the property on the ground that ALABAMA DECISIONS. 37 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 .contracts 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 — Issued to one not oivner of the goods and deposited as collateral — Bank liable for conversion — Owner not estopped: — One in possession of goods for the purpose of sale, without authority deposits them in a warehouse, taking a receipt in his own name and procures a loan at a bank, using the receipt as collateral security. Subsequently the loan is paid and the re- ceipt delivered by the bank to persons designated by the de- positor. In an action of trover by the owner of the goods against the bank it was held although the bank had no knowl- edge of the absence of ownership in the depositor, that it was liable for conversion. That the warehouse receipt was the symbolic representation of the goods and as the receipt never rightfully came into the possession of the defendant it was not necessary to show a demand in order to establish conversion. The court further held that the owner, merely by sending the goods to one for the purpose of sale, was not estopped to assert his ownership against a pledgee who had accepted as security a warehouse receipt issued in the name of such person. Peoples .Savings Bank & Trust Co. v. Huttig Mfg. Co., 55 So. 929. See also Traders Nat' I Bank v. Huttig Mfg. Co., 55 So. 928. Same — One must be a legal holder to maintain action thereon: — The legal title to warehouse receipts must be in the plaintiff be- fore he can maintain an action thereon under section 4222 (6135) 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 38 ALM'.AMA 11ECIST0NS. in writing that tlic property should he delivered lo the plaintiff, il was held, that the iilaiutilT eould not ni;iintain an action for the recovery of the goods on such w a rehouse receipts, for he was not entitled to possession of them. Baker v. Malone & Son, 126 Ala. 510: Weil Bros. v. Ponder, U7 Ala. 296. Same — Transferee }nay maintain action against warehouse- man: — Under section 4222 of the Code of Alabama 1896 a transferee of a warehouse receipt upon which the words "not negotiable" do not appear may maintain an action against the warehouseman for failure to deliver on demand the goods repre- sented by the receipt. Bank of Dothan v. Daivsey vr Co., 137 Ala. 584' Same — Negotiability — Procured through fraud — Innocent pur- chaser protected: — Where a third person, innocently and in good faith, purchases a warehouse receipt for goods which his vendor procured by fraud, such third person will be protected, provided he gave value for the property or incurred some re- sponsibility upon the credit of it, and took without notice of the fraud. Allen, Bethune Cr Co. v. Maury & Co., 66 Ala. 10. Same — Same— Action maintainable upon, although receipt not indorsed: — In an action by the owner of cotton which was de- stroyed while stored in a warehouse as a result of fire caused by sparks from defendant's locomotives, it was shown that part of the cotton was purchased for plaintiff by a third party with money furnished by plaintiff for that purpose ; and that the warehouse receipts for the same were issued in the name of such third person and by him delivered to plaintiff unindorsed. It was held that plaintiff had shown sufficient title to the cotton to maintain his action for its destruction. Alabama Great South- ern R. R. Co. v. Clark, 136 Ala. 450. Same — As collateral — Delivery ivithout indorsement — Effect. — The general rule, independent of statutory regulations, is .conceded to be that the delivery, without indorsement, of a \varehouse 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 con- strued to mean that the indorsement of a warehouse receipt is necessary in order to pass the legal title thereto. Nevertheless neither the al)ove section nor Sess. Acts, 1880, 1881, p. 133, ALABAMA DECISIONS. 39 operate to prevent the transfer of a special property and con- structive possession, by the delivery of the receipt without in- dorsement, sufficient to create a valid pledge as between the parties, and, as to third persons not having acquired prior inter- vening rights. Ala. State Bank v. Barnes, 82 Ala. 607. Same — Same — In facto/s name — Notice — What title ac- quired: — Where a warehouse receipt, issued in the name of a factor for cotton stored by him, recites the name of the owner, and is afterward transferred by the factor as collateral security for a note, on which note there is indorsed that such "cotton has been advanced upon * * * j^q j^-g f^jj 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. Same — Delivery of cotton to one in possession of the receipt without indorsement — Warehouseman liable: — A warehouse re- ceipt for cotton, subject to the 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 dis- pose of the same. Lehman, Durr & Co. v. Marshall, 47 Ala. 362. Same — Pleadings — Suit by transferee against ivarehouseman — Complaint must allege indorsement to plaintiff — Also defend- ant's refusal to deliver: — A complaint in an action against a ware- houseman on a warehouse receipt, failed to allege that the re- ceipt 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 al.so held that the complaint 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. Birm- ingham & A. R. K. Co., 125 .Ma. 378; Allen, Bethune & Co. v. Maury & Co., 66 Ala. 10; Lehman, Durr & Co. v. Marshall, 47 40 ALABAMA DECISIONS. Ala. 362; Capchart v. Granite Mills Co., 97 Ala. 353; Baker v. Malonc, 126 Ala. 510. Rut see Weil Bros. v. Ponder, 127 Ala. 296. Same — Same — Same — Complaint m,ust allege to whom plain- tiff advanced money on the receipt and to zvhom receipt en- dorsed: — In an action by a tran.sferee of a warehouse receipt against the warehouseman the complaint failed to allege to whom plaintiff advanced money on the receipts and also to whom the receipts were indorsed. Upon demurrer the complaint held bad on above grounds. The court pointed out that the defendants were entitled to be made aware of the traversable facts upon which plaintiff relied. Bank of Dothan v. Dawsey & Co., 136 Ala. 584. Same — Same — Complaint must aver title in plaintiff's vendor: — A declaration which failed to aver that the person to whonx the warehouse receipts were issued, and from whom plaintiff purchased the cotton, was the owner of the cotton, held defective, on demurrer. A majority of the court also held that an indorse- ment 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. Ponder, 127, Ala. 296. See also Baker v. Troy Compress Co., 114 Ala. 415, and Alabama Great Southern R. R. Co. v. Clark, 136 Ala. 450. Bills of lading — Negotiability — Issued in name of fictitious person — Bona fide holder: — Bills of lading are not negotiable in the sense of bills of exchange and other commercial paper. Al- though 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 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 emanate. Jasper Trust Co. v. K. C, M. & B. R. R. Co., 99 Ala. 416. S. Custom, zvhat not good: — A custom in the city of Mont- gomery, among merchants, factors and planters, dealing in cotton, ALABAMA DECISIONS. 41 that warehouse receipts 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 indorsement, 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. Mar- shall, 47 Ala. 362. o o UJ o o a. fcr o o 42 ARIZONA LAWS. CHAPTER III ARIZONA LAWS I'KKTAININC; TU WAREHOUSEMEN Receipt: — .V warehouse receipt is an instrument in writ- ing 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 agree- ing 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, controlling or operating, as owner or agent or superintendent of any company or corpora- tion, any warehouse where any produce or commodity is stored to deliver to the owner of such produce or commodity a ware- house 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 he delivered at this warehouse upon return of this receipt properly indorsed and payment of charges. This receipt nego- tiable when duly indorsed by consignor. Storage to (here give amount and date). Signed (name of Firm or Company). (Name of Agent) Agent. Id. sec. 4155. ARIZONA LAWS. 43 Fraudulent receipts: — No person shall issue any receipt or other voucher as provided herein for any produce or com- modity 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 "duplicate." 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 for 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 without 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 receijit has been given by him as aforesaid for storing, without the written consent of the holder of the receipt. Id. sec. 41 58. Owner entitled to property on presentation of receipt and charges: — On the ])rescntation of the receipt given by any person operating any warehouse for any 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 the rerei])l, and it .shall be the duty of such warehouseman, or (Hher person having possession thereof, to deliver such commodity 44 ARIZONA LAWS. to the owner of sucli receipt without further expense to such owner and without unnecessary delay. Id. sec. 4159. Penalties for violations: — 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 a like punish- ment upon indictment and conviction. And every person aggrieved by a violation 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 consequen- tial, 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 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 in- dorsement 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 com- modity which the first holder of a warehouse receipt had when he received it passes to every subsequent indorsee therof in good faith, and for value, in the ordinary course of business, with like efifect 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 equivalent terms, a simple transfer there- of by delivery conveys the same title as an indorsement. Id. sec. 4163. Receipt does not alter obligations of proprietor: — A ware- house receipt does not alter the rights or obligations of the ware- house proprietor as defined in this title unless it is plainly incon- sistent therewith. Id. sec. 4164. ARIZONA LAWS. 45 Duplicate receipts: — A warehouse proprietor must sub- scribe and deliver to the bailor, on demand, any reasonable num- ber of warehouse receipts, 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 re- cover from him besides all damages thereby occasioned. Id. sec. 4165. Proprietor exonerated from liability: — A warehouse pro- prietor is exonerated from liability for produce or commodity by delivery thereof, in good faith, to any holder of an original warehouse receipt thereof, properly indorsed, 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. Every person, firm or corporation engaged in the business of storing for hire; goods, wares, merchandise, grain, hay, provi- sions or other products, commodities or personal property, shall be deemed and held to be a warehouseman. Laws Arizona, 1907. p. 59, Chap. 47. sec. 1. Any property in a warehouse, which is perishable, or upon which any charges have been due and unpaid for a period of six months or over, may be sold by the warehouseman in the same manner, and under the same regulations and provisions as are prescribed by Paragraphs 873 and 874, Sections 113 and 114 of Chapter 7 of Title 13, of the Revised Statutes of Arizona, 1901. for the sale of freight and baggage; and all the provisions of said paragraphs, not inconsistent with this act are hereby made applicable to sales made by warehousemen. Id. sec. 2. Any railroad company, express company or common carrier, having any undelivered baggage or freight in its possession, may, after first giving five days' notice in writing by mail, to the consignee or owner thereof, if known, of its intention so to do, deliver such baggage, or freight, to a warehouseman for stor- age, upon such warehouseman's paying to the railroad company, express company or common carrier, the amount of freight or 46 ARIZONA LAWS. charges due thereon. 1 "he warehouseman shall iia\e a lieu there- on for the amount of freigiit and charges so paid, with interest at the legal rate, as well as for storage. If said amounts are not paid to the warehouseman within six months after such freight or baggage is so received by him, he may sell the same, in the manner and subject to the same provisions as heretofore prescribed for the sale of other pro])erty on which storage charges are unpaid for a period of six months. Id. sec. 3. This act shall take effect and be in force from and after its passage. Approved March 18, 1907. Id. sec. 4. Note. There seem lo be no decisions in Arizona affecting warehousemen. ARKANSAS LAWS. 47 CHAPTER IV ARKANSAS LAWS PERTAINING TO WAREHOUSEMEN Warehousemen not to issue receipts until goods are under his control: — No warehouseman, wharfinger or other person shall issue any receipt or voucher for any goods, wares, mer- chandise, 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 control at the time of issuing such receipt. Kirby's Digest, 1904, sec. 524. No warehouseman, wharfinger or other person shall issue any receipt or other voucher upon any goods, wares, merchandise, cotton, grain, flour, or other produce or commodity to any per- son or persons for any money loaned or other indebtedness, 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 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. 525. No warehouseman, wharfinger or other person shall issue any second or duplicate receipt for any goods, wares, merchandise, 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 aforesaid, or any part thereof, shall be outstanding and uncancelled, without writing across the face of the same, "Duplicate," Id. sec. 526. No warehouseman, wharfinger or other person shall sell or incumber, ship or transfer, or in any manner remove, or per- mit tf) be '^bi|)pcd, Iransferrcf] nr rcnio\cd beyond his control, any 48 ARKANSAS LAWS. such eoocls. wares, incrcliaiulisc, ctUton. lirain, flour or other produce or commodity, for whicli a receipt shall have been given by him, as aforesaid, whether received for storing?, shipjiing, grinding, manufacturing or other purpose, without tiie written assent of the person or persons holding such receipt. Id. sec. 527. 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 document 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, or to the owner or owners thereof, or his or their agent or agents, to be carried and conveyed as expressed in such bill of lading, receipt or other voucher or document. Id. sec. 528. 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 hereby made negotiable by written indorsement thereon, and delivery in the same man- ner as bills of exchange and promissory notes ; and no printed or written conditions, clauses or provisions inserted in or at- tached to any such receipts, bills of lading or contracts shall in any way limit the negotiability, or affect any negotiation there- of, 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 the rights, du- ties or liabilities created or declared in this act shall be void and of no force or effect. Id. sec. 529. Above section construed — Bill of lading — Transfer without indorsement: — If a written indorsement is necessary under Kirby's Digest, sees. 529 and 530. 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. J.<^racl , 64 Ark. 244. ARKANSAS LAWS. 49 Warehouse receipts given by any warehouseman, wharfm^ier. 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 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 re- ceipts, 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. Kirby's Digest, 1904, sec. 530. Any warehouseman, wharfinger, forwarder or other person who shall violate any of the provisions of this act shall he deemed guilty of a criminal ofifense, 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 yea.rs, 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 violating any of the 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 or persons shall have been convicted of fraud as aforesaid under this act or not. Jd. sec. 531. 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 lading" were men- tioned in every section of said act. Id. sec. 532. 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 4 50 ARKANSAS nKriST(~)NS. delivery thereon in case of partial delivery, shall not apply to property replevied, or removed by operation of law. Id. sec. 5;vi 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. A record of such sale shall be kept, which shall be open to the inspection of all parties interested therein. Id. sec. 8002. The purchaser or assignee of the receipt of any ginner, ware- house-holder or cotton factor or other bailee for any cotton, corn or other farm products in store or custody of such ginner, ware- houseman, cotton factor, or other bailee shall not be held to be an innocent purchaser of any such produce against the lien of any landlord or laborer. Id. sec. 5036. 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 ARKANSAS DECISIONS. 51 caused by such negligence, your verdict will be for the plain- tiff." Further held that the burden was upon plaintiff to show de- fendant's negligence. James v. Orrell, 68 Ark. 284. B. Ordinary care — Warehouseman not an insurer: — A ware- houseman is bound only to the exercise of reasonable and ordi- nary 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, 42 Ark. 200 ; Kansas City & F. S. Ry. Co. V. McGahey, 63 Ark. 344; Murphy v. Lemay, 32 Ark. 223; Union Compress Co. v. Nunally, 67 Ark. 284; Burr & Co. v. Daugherty, 21 Ark. 559. Conversion — Sale by son of zvarehouseman — Ratification: — The son of a warehouseman sold plaintiff's goods which were stored. It appeared that the son thought the goods had been abandonded; further that the warehouseman accepted part of the proceeds of the sale and intended to collect the balance. Held, that this w-as 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 the charges upon the goods. 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. Storage Contract — Provision that 7vas subject to all "rules and regulations governing the storage of apples" — Consent of general manager to allow space occupied by apples sold to be filled by others, binding on zvarehouseman — Counterclaim — Parol evi- dence: — The plaintiffs, warehousemen, sued defendants for stor- 52 ARKANSAS DECISIONS. age changes upon a written contracl i)rovi(ling the eharge would be fifty cents per barrel for space necessary for 2,800 barrels. The contract further provided that it was suljject to all the ware- houseman's "rules and regulations governing the storage of ap- ples." Defendants filed a counterclaim alleging that at the time of signing such contract they explained to plaintiff's general manager that they were apple dealers and would desire to re- place barrels sold out of the warehouse by other barrels during the season ; that the general manager consented to this ; that they attempted to replace 722 barrels which had been sold from the Avarehouse and plaintiffs refused to allow them to do so ; and that because of plaintiff's refusal the apples decayed resulting in a loss to defendants of $1,277.30. The evidence showed plain- tiffs had printed rules and regulations but there was no refer- ence in them to the refilling of vacated space. Under per- emptory instruction, the jury returned a verdict for the full amount of the storage charges. On appeal it was held that as the contract was silent on the subject of replacing barrels for those sold, parol evidence was admissible to show what the agreement in this regard was, and that the consent of plaintiff's general manager to allow this to be done was binding upon them and was a rule or regulation within the meaning of the contract ; that all of these facts should have been presented to the jury under a proper charge, but that the defendants were only entitled to recover on their counterclaim the cost of storage for the 722 barrels and not for decay resulting from their failure to either sell them or store them elsewhere. Montgomery & Co. v. Arkan- sas Cold Storage & Ice Co., 124 S. W. 768. L. Replevin — Storage charges must he paid before it will lie — Demand: — Replevin will not lie for property legally in the pos- session of another who has a lien upon it for charges, until such charges be paid, nor until after demand and refusal or conver- sion. Hill V. Robinson, 16 Ark. 90; Burr & Co. v. Daugherty, 21 Ark. 559. N. Loss of goods — Destruction after reaching hands of ware- houseman, hut before reaching place of storage: — Where a ware- houseman agrees to receive goods at another than the place of ARKANSAS DECISIONS. 53 Storage, he is bound to exercise ordinary diligence in their re- moval 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 warehousemen, for goods destroyed in its depot, it appeared that a large quantity of cotton was piled on its platform near the depot and a short dis- tance from the railway track ; that at the time the weather was very dry; that the cotton was highly inflammable 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 negligence. Railway v. Dodd, 59 Ark. 317. Same — Same — Same — Allozving door to remain open and out of repair — Warehouseman liable: — A warehouse was located contiguous to railroad tracks along which engines were constantly passing. A large quantity of unbaled cotton was kept there ex- posed. There were holes and cracks in the corrugated iron wall of the shed next to the railroad tracks. A door was permitted to get out of repair so it could not be closed and it so remained for a considerable time. Under above circumstances it was held the warehouseman was liable for the destruction by fire of cotton so stored, as he was guilty of negligence in his custody thereof. Gulf Compress Co. v. Harrington, 119 S. W. 249. Destruction by a mob: — Where goods in the hands of one liable as a warehouseman were destroyed by a mob, and no evi- dence was given to show negligence on his part, it was held that he was not liable for the value of the same. Pacific Express Co. V. Wallace, 60 Ark. 100. P. Insurance — Company may insure for full value: — Where a compress company insured goods intrusted with it for compres- sion, to their full value and in its own name it was held lawful, and that in tlie 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 54 ARKANSAS DECISIONS. goods. California his. Co. v. Union Compress Co., 133 U. S. 387; Home Ins. Co. v. Balto. IVarehousc Co., 93 U. S. 527; Lon- don &N. U\ Ry Co. V. Glyn, 1 Ell. & E. Q. B. 652. Q. Warehouse receipt — Delivery of cotton to one holding unin- dorsed receipt issued in name of another — Showing a custom to do this of no avail — Warehouseman liable: — A compress com- pany which delivered cotton to one upon the presentation of an unindorsed warehouse or compress receipt which it had issued in the name of another person held liable to the owner, in the absence of negligence on his part, for the value of the cotton thus improperly delivered. Nor will it avail the warehouseman to show it was customary to treat all such receipts as though they were made payable to bearer. Citizens Bank v. Arkansas Compress & Warehouse Co., 80 Ark. 601. Same — Effect of transfer: — A warehouseman's receipt for cot- ton 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 constructive 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. al. v. Her- vey, 44 Ark. 301. Same — Attempted exemption from liability for loss by fire — Of no effect where negligence shown — Receipt construed against warehouseman: — A warehouse receipt contained a provision that the warehouseman was "Not responsible for loss by fire, acts of Providence, natural shrinkage, old damage, or for fail- ure to note concealed damage." In a case where the jury was justified in finding the defendant liable as the loss by fire was occasioned by the warehouseman's negligence, it was held the provision in regard to non-liability for loss by fire was not ap- plicable where negligence was shown. The receipt having been prepared by the warehouseman is to be construed against him. Gulf Compress Co. v. Harrington, 119 S. W. 249. Same — Warehouseman bailee of every transferee: — By exe- cuting the receipt the warehouseman consents to become the bailee of any one to whom it may be transferred, and to become such bailee from the time of transfer. Durr et al. v. Hervey, 44 Ark. 301. ARKANSAS DECISIONS. 55 Same — Negotiability — Lost unindorsed receipt — Owner pro- tected: — Although by statute (Kirby's Digest sec. 529) ware- house receipts are declared to be negotiable in the same man- ner "as bills of exchange and promissory notes" nevertheless it does not follow that all the consequence incident to the indorse- ment of bills of exchange before maturity, ensue from the ne- gotiation of warehouse receipts. Where a receipt issued in the name of the owner of the goods is without his negligence lost without being endorsed, the finder acquires no title to the goods represented. A warehouseman delivering cotton to the finder of such receipt is liable to the owner for the value of the goods so delivered. Citizens Bank v. Ark. Compress and JVarehouse Co., 80 Ark. 601. See also Shazv v. Railroad Co., 101 U. S. 557. Same — As collateral — Indorsement, effect of: — The indorse- ment 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 purchas- ers and creditors. Bank of Newport v. Hirsch, 59 Ark. 225. Same — Same — Wrongful delivery — Warehouseman liable to bank: — Where a compress company knew that all of the cot- ton belonging to one of its customers had, by the use of its ware- house receipts been borrowed upon at a bank and the compress company delivered to such customer a quantity of cotton called for in a receipt which he presented which receipt was in the name of another customer and unindorsed, it was held the com- press company was liable to the bank to the extent of its loss. Citizens Bank v. Ark. Compress and Warehouse Co., 80 Ark. 601. R. Bill of lading — Recitals therein as to condition of the goods: — A recital in a bill of lading that the goods were received "in ap- parent 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. Ry. Co. v. Neel, 56 Ark. 279. Same — Transfer tvithout indorsement — Equitable title: — By the statutes of this state bills of lading are made negotiable like those of exchange and promissory notes and may be transferred by written indorsement. (Sand. H. Dig. sees. 509 and 510.) ^^ ARKANSAS DECISIONS. Assuming that these statutes require written indorsement to transfer the legal title it is, nevertheless, true that the transfer without indorsement, like the transfer of an unindorsed note, would be sufficient to pass the equitable title. Turner v. Israel, (i4 Ark. 244. Same — What constitutes possession or control — Estoppel: — B)^ the Act of March 15, 1887 (sec. 505), common carriers, ware- housemen 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 ware- houseman 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 voucher 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 es- topped as to third persons from denying that the property rep- resented by the bill of lading was not in his possession or under his control. Martin v. Railway Co. 55 Ark. 510. CALIFORNIA LAWS. 57 CHAPTER V CALIFORNIA LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Califor- nia. See Calif. Stats. 1909, p. 437, also this volume p. 1. Deposit for hire: — A deposit not gratuitous is called stor- age. The depositary in such case is called a depositary for hire. Kerr's Civ. Code. 1905, sec. 1851. Degree of care required of depositary for hire:— A deposi- t-ary for hire must use at least ordinary care for the preserva- tion of the thing deposited. Id. sec. 1852. Rate of compensation for fraction of a week, 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 during which a deposit is to continue, it may be terminated by the depositor at any time, and by the de- positary upon reasonable notice. Id. sec. 1854. Same — (on payment of charges to become due) : — Notwith- standing 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. Carriers, etc., may retain goods until charges paid: — ^VVhen any goods, merchandise, or other property has been received by any railroad or express company, or other common carrier, com- mission merchants, innkeepers or warehousemen, for transpor- tation or safe keeping, and are not delivered to the owner, con- signee, or other authorized person, the carrier, commission mer- 58 CALIFORNIA LAWS. chant, innkeeper, or warehouseman, may hold or store the same with some responsible person until the freight and all just and reasonable charges are paid. Kerr's Pol. Code, 1905, Sec. 3152. Property unclaimed within sixty days to be sold: — If no person calls for the property within sixty days from the receipt thereof, and pays freight and charges thereon, the carrier, com- mission merchant, innkeeper, or warehouseman may sell such property, or so much thereof as will pay freight and charges, to the highest bidder at public auction, having first caused such notice of sale to be given as is customary in sales of goods by auction at the place where said goods may be held o^ stored. If any surplus is left, after paying freight, storage, expenses of sale, and other reasonable charges, the same must be paid over to the owner of such property, upon demand being made therefor at any time within sixty days after the sale. Id. Sec. 3153. Proceeds unclaimed, where to go: — If the owner or his agent fails to demand such surplus within sixty days of the time of such sale, then it must be paid into the county treasury, sub- ject 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 re- sponsibility of the carrier ceases, nor is the person 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: — 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, mer- chandise, or property on which the advances were made, to be advertised and sold as provided herein. Id. Sec. 3156. Fees of officers:— The fees of officers under this chapter are the same allowed for similar services in other cases provided in this code, to be paid by the taker-up or finder and recovered of the owner. Id. Sec. 3157. Proceedings in sale of unclaimed goods:— All proceedings had under this article shall be governed entirely by the pro- CALIFORNIA LAWS. ^^ visions hereof, and shall not be controlled or affected by the provisions of article two, of chapter III, of title VII, of part IV, of division III of the Civil Code of the State of California. Id. Sec. 3158 as added by Act approved June 16, 1913, in effect August 10. 1913, Statutes of California 1913, Chapter 568, page 980. Inspection of food-producing establishments : — Every build- ing, room, basement or cellar, occupied, or used as a bakery, con- fectionery, cannery, packinghouse, slaughterhouse, restaurant, hotel, grocery, meat market, or other place or apartment, used for the production, preparation for sale, manufacture, packing, stor- age, sale or distribution of any food, shall be properly lighted, drained, plumbed and ventilated, and conducted with strict re- gard to the influence of such conditions upon the health of the operatives, employees, clerks or other persons therein employed, and the purity and wholesomeness of the food therein produced, kept, handled or sold; and for the purpose of this act the term "food" shall include all articles used for food, drink, confec- tionery or condiment, whether simple or compound, and all sub- stances and ingredients used in the preparation thereof. Kerr's Biennial Supp. 1906-1909, pp. 1965-1968, Sec. 1. The floors, sidewalks, ceilings, furniture, receptacles, utensils, implements and machinery of every establishment or place where food is manufactured, packed, stored, sold or distributed, shall at no time be kept in an unclean, unhealthful or unsanitary con- dition ; and for the purposes of this act, unclean, unhealthful and unsanitary conditions shall be deemed to exist if food in the process of manufacture, preparation, packing, storing, sale or distribution is not securely protected from flies, dirt, unsanitary conditions, and as far as may be necessary, by all reasonable means from all other foreign or injurious contamination; and if the refuse, dirt, and the waste products subject to decomposi- tion and fermentation incident to the manufacture, preparation, packing, storing, selling and distributing of food are not removed daily; and if all trucks, trays, boxes, baskets, buckets, and other receptacles, chutes, platforms, racks, tables, shelves, and all knives, saws, cleavers, and all other utensils, receptacles, and machinery, used in moving, handling, cutting, chopping, mixing, canning, and all other processes used in the preparation of food are not thoroughly cleaned daily; and if the clothing of opera- 60 CALIFORNIA LAWS. lives, employees, clerks, aiul other persons therein employed, is unclean, or if they dress or undress, or leave or store their cloth- ing therein. /(/. Sec. 2. The side walls and ceilings of every bakery, confectionery, hotel and restaurant kitchen, shall be well plastered, or ceiled, with metal or lumber, or shall be oil painted or kept well lime washed, or otherwise in a good sanitary condition and all in- terior woodwork of every bakery, confectionery, hotel and restau- rant kitchen, shall be kept well oiled or painted with oil paint, and be kept washed clean with soap and water or otherwise kept in a good sanitary condition; and every building, room, basement or cellar, occupied or used for the preparation, manufacture, pack- ing, storage, sale or distribution of food, shall have an imper- meable floor, made of cement or tile laid in cement, brick, wood or other suitable, non-absorbent material which can be flushed and washed clean with water. Id. Sec. 3. The doors, windows and other openings of every food pro- ducing or distributing establishment, where practicable, shall be fitted with stationary or self-closing screen doors and wire window screens, of not coarser than fourteen mesh wire gauze. Id. Sec. 4. Every building, room, basement or cellar, occupied or used for the preparation, manufacture, packing, canning, sale or distribu- tion of food, shall have convenient toilet or toilet rooms, separate and apart from the room or rooms where the process of produc- tion, manufacture, packing, canning, selling or distributing is conducted. The floors of such toilet rooms shall be of cement, tile laid in cement, wood, brick or other non-absorbent material, and shall be washed and scoured daily. Such toilets shall be furnished with separate ventilating pipes or flues, discharging into soil pipes, or on the outside of the building in which they are situated. Lavatories and washrooms shall be adjacent to toilet rooms, and shall be supplied with soap, running water and towels, and shall be maintained in a clean and sanitary con- dition. Operatives, employees, clerks and all persons who handle the material from which food is prepared, or the finished product, before beginning work and immediately after visiting a toilet or lavatory shall wash their hands and arms thoroughly in clean water. Id. Sec. 5. Cuspidors, for the use of operatives, employees, clerks and other persons, shall be provided, and each cuspidor shall be CALIFORNIA LAWS. ^^ emptied and washed out daily with disinfectant solution and not less than five ounces of such solution shall be left in each cuspidor while in use. No operative, employee, clerk or other person, shall expectorate or discharge any substance from his nose or mouth, on the floor or interior side wall of any building, room, basement, or cellar where the production, manufacture, pack- ing, storing, preparation or sale of any food product is con- ducted. Id. Sec. 6. No person shall be allowed to, nor shall he, reside or sleep in any room of a bake shop, public dining room, hotel or restaurant kitchen, confectionery, or other place where food is prepared, produced, manufactured, served or sold. Id. Sec. 7. No ■ employer shall require, permit or suffer any person to work, nor shall any person work, in a building, room, basement, cellar, place or vehicle, occupied or used for the production, preparation, manufacture, packing, storage, sale, distribution or transportation of food, who is afflicted or affected with any venereal disease, small pox, diphtheria, scarlet fever, yellow fever, tuberculosis, consumption, bubonic plague, Asiatic cholera, leprosy, trachoma, typhoid fever, epidemic dysentery, measles, mumps, German measles, whooping-cough, chicken pox, or any other infectious or contagious disease. Id. Sec. 8. The members of the state board of health, inspectors and agents appointed by said board, and all local health officers and inspectors, shall have full power at all times to enter every build- ing, room, basement, cellar, or any place occupied or used, or suspected of being occupied or used, for the production, manu- facture, preparation, storage, sale or distribution of food, and to inspect the premises and all utensils, implements, receptacles, fixtures, furniture and machinery used as aforesaid, and if, upon inspection, any such building, room, basement, cellar, or any such place, vehicle, employer, operative, employee, clerk, driver or other person, is found to be in violation or violating any of the provisions of this act. or if the production, prepara- tion, manufacture, packing, storing, sale or distribution of food is being conducted in a manner detrimental to the health of the employees or operatives or to the character or quality of the food therein produced, manufactured, packed, stored, sold, dis- tributed or conveyed, the officer or inspector making the exami- nation shall at once make a written report of the same to the district attorney of the county who shall prosecute ^all persons 62 CALIFORNIA LAWS. violating any of the provisions of this act, and also to the state board of health. The state board of health, from time to time, as in its discretion it may determine, may publish such reports in its monthly bulletin, fd. Sec. 9. All buildings, rooms, basements, cellars, and other places and things, kept, maintained or operated, or which are, in violation of the provisions of this act or any of them, and all food pro- duced, prepared, manufactured, packed, stored, kept, sold, dis- tributed or transported, in violation of the provisions of this act or any of them, are hereby declared to be public nuisances, dangerous to health. Such nuisances may be abated or enjoined, in an action brought for that purpose by the local or state board of health, or they may be summarily abated in the manner pro- vided by law for the summary abatement of public nuisances dangerous to health. Id. Sec. 10. Any person, firm or corporation, whether as principal or agent, employer or employee, who violates any of the provisions of this act shall be guilty of a misdemeanor, and each day that condi- tions or actions, in violation of this act, shall continue, shall be deemed to be a separate and distinct oflfense, and for each offense, upon conviction, he shall be punished by a fine of not less than twenty-five dollars, nor more than five hundred dollars, or shall be imprisoned in the county jail for a term not exceeding six months, or by both such fine and imprisonment. Id. Sec. 11. Relating to weights and weighers for warehousemen and wharfingers, and matters connected therewith: — All persons now engaged in or who may hereafter engage in a general ware- house, wharfinger or storage business for the storage of grain or other commodities, which in the course of such business are weighed, shall before they engage in such business or within sixty days after the appointment of an inspector of weights as provided in section four of this act, designate in writing a person or persons as weigher or weighers for such business at the place thereof, and the person or persons so designated shall thereupon, and before they shall do any weighing for such busi- ness subscribe, before an officer authorized to administer oaths, the following oath, to wit : "(I or we) designated as (weigher or weighers) will cor- rectly weigh all grain or other commodities brought to (here designating the business and place of business) for storage or weighing, or which may be taken out from the same, and in all CALIFORNIA LAWS. •* cases render to the person bringing or receiving the same, as the case may be, upon demand, a full, true and correct account of the weight thereof." Gen'l Laws Calif., Henning, 1905, pp. 1474-1475, Sec. 1. All persons engaged in the business in the foregoing section mentioned shall keep for and use in such business no other than true and correct scales and weights. Said designation and said oath shall thereupon and within the time aforesaid, be recorded in the office of the recorder of the county in which such business is to be or is being carried on. No person, excepting the person or persons thus designated and subscribing and recording such oath shall do any of the weighing of such business. Id. Sec. 2. Every person engaged in the business in said section one men- tioned, shall keep and use therein none but true weights, and scales ; said weights must conform to the United States standard of weights. Id. Sec. 3. The board of supervisors of the respective counties of the state of California, hereby are authorized to appoint for their respective counties an inspector of weights and measures, who shall hold office at the pleasure of said board and receive such compensation as each board may allow, and whose duty it shall be from time to time to test and examine all scales and weights kept or used in the business in the foregoing sections mentioned, and report all violations of this act to the district attorney of such county, whose duty it shall be to prosecute all violations hereof. Id. Sec. 4. Every violation of this act shall be and is punishable as a mis- demeanor. Id. Sec. 5. Besides the prosecution of the criminal actions herein pro- vided for, every person defrauded by false or incorrect weigh- ing shall be entitled to recover from the person owning or con- ducting such business as in the foregoing sections mentioned, in any court of competent jurisdiction, three times the amount of such shortage in weight of the grain or other commodity so de- livered or taken out by him. Id. Sec. 6. "Cold storage," etc., defined — "Articles of food" — Storer": — The term "cold storage" as used in this act shall be construed to mean a place artificially cooled to a temperature of forty degrees Fahrenheit or below but shall not include such a place in a \)r\- vate home. The term "cold stored" as used in this act shall be G4 CALIFORNIA LAWS. constructl lo moan ihc keeping o\ "aiiicles of food," excepting eggs and butter, in "cold storage" for a ])eii<>d exceeding thirty days; provided, lunvcz'cr, that when the term "cold storage" is used in connection with eggs and l)ulter, it shall mean the keeping of these "articles of food" in "cold storage" for any length of time whatever. The term "articles of food" as used in this act shall he construed to mean and include fresh meat, and fresh meat products (except in process of manufacture), fresh fruit and vegetables, fish, shellfish, game, poultry, eggs, butter and cheese. The term "storer" as used in this act shall be construed to mean the person or persons who offer articles of food for cold storage. Act approved June 13, 1913, in effect August 10, 1913. Stat- utes of California 1913, Chapter 360, page 769, Sec. 1. Application to operate cold storage plant — License fee: — Any person, firm or corporation desiring to operate a public cold storage or refrigerating warehouse, shall make application in writ- ing to the state board of health for that purpose, stating the location, of its plant or plants. On receipt of the application the state board of health shall cause an examination to be made into the sanitary condition of said plant or plants and if found to be in a sanitary condition and otherwise properly equipped for the business of cold storage, the state board of health shall cause a license to be issued authorizing the applicant to operate a cold storage or refrigerating warehouse for and during a period of one year. The license shall be issued upon payment by the appli- cant of a license fee of fifty dollars to the state board of health. The secretary of the state board of health shall keep a full and correct account of all fees received under the provisions of this act, and shall, at least once each month, deposit all such fees collected with the state treasurer, and make a detailed report covering same to the state controller, and such moneys shall be credited to the traveling and contingent fund of the state board of health, to be used exclusively for the purpose of this act. Id. Section 2. Use of unsanitary places for cold storage prohibited: — In the event that any place or places, or any part thereof, covered by a license, under the provision of this act shall at any time be deemed by the state board of health to be in an unsanitary con- dition, it shall be the duty of the state board of health to notify CALIFORNIA LAWS. 65 licensee of such condition and upon the failure of the licensee to put said specified place or places, or the specified part thereof, in a sanitary condition within a designated time it shall be the duty of the state board of health to prohibit the use under its license (of) such specified place or places, or part thereof, as it deems in an unsanitary condition until such time as it may be put in a sanitary condition. Id. Section 3. Record of receipts and withdrawal — Quarterly reports: — It shall be the duty of any person, firm or corporation, licensed to operate a cold storage or refrigeration warehouse to keep an ac- curate record of the receipts and the withdrawals of the articles of food, and the state board of health shall have free access to these records at any time. Every such person, firm or corpora- tion, shall, furthermore, submit a quarterly report to the state board of health, setting forth in itemized particulars quantity of food products held in cold storage. Such quarterly reports shall be filed on or before the twenty-fifth day of January, April, July and October of each year, and the reports so rendered shall show the conditions existing on the first day of the month in which the report is filed. The state board of health shall have the au- thority to require such reports to be made at more frequent intervals than the times herein specified, if in the judgment of the state board of health more frequent reports shall be needed in the interest of a proper enforcement of this act, or for other reasons affecting the public welfare. Id. Sec. 4. Diseased articles not to be stored — Articles for other than human consumption to be marked: — No storer shall place in cold storage any article of food intended for human consumption, if diseased, tainted or deteriorated so as to injure its keeping qualities, or if not slaughtered, handled and prepared for storage in accordance with the pure food and sanitary food laws and such rules and regulations as may be prescribed by the state board of health for the sanitary preparation of food products for cold storage, under the authority hereinafter conferred. Any article of food if intended for use other than human consumption before being cold stored shall be marked by the owner in accord- ance with forms prescribed by the state board of health, under authority hereinafter conferred, in such a way as to plainly indi- cate the fact that such articles are not to be sold for human food. Id. Sec. 5. 5 66 CALIFORNIA LAWS. Board of health to supervise and inspect cold storage plants: — It shall he the iluty of the state hoard of health to inspect and supervise all cold storaj][e or refrigerating warehouses in this state, and to make such inspection of the entry of articles of food therein as the state hoard of health may deem necessary to secure proper enforcement of this act. The members of the state board of health or its duly authorized agents, inspectors or employees, shall be permitted access to such establishments and all parts thereof at all reasonable times for purposes of inspection and enforcement of the provisions of this act. The state board of health may also appoint and designate, at such salary or sal- aries as it may designate, such person or persons as it deems qualified to make the inspections herein required. Id. Sec. 6. Dates of receipt and withdrawal marked on articles: — All articles of food when deposited in cold storage shall be marked plainly on or in connection with the containers in which they are ]iacked on the individual article with the date of receipt, and when removed from cold storage shall be marked with the date of withdrawal, in accordance with such forms as may be prescribed by the state board of health, under the authority hereinafter con- ferred. Id. Sec. 7. Maximum period twelve months — Extension of period : — No person, firm or corporation as owners or having control shall keep in cold storage any article of food for a longer period than twelve calendar months, except with the consent of the state board of health, as hereinafter provided. The state board of health, shall, upon application, grant permission to extend the period of storage beyond twelve months for particular consign- ment of goods, if the goods in question are found, upon examina- tion, to be in proper condition for further storage at the end of twelve months. The length of time for which further storage is allowed shall be specified in the order granting the permission. A report on each case in which such extension of storage may be permitted, including information relating to the reason for the action of the state board of health, the kind and the amount of goods for which the storage period was extended, and the length of time for which the continuance was granted, shall be included in the annual report of the state l)oard of health. Id. Sec. 8. CALIFORNIA DECISIONS. 67 Notice : "These are cold storage goods." It shall be unlaw- ful to sell, or to offer or expose for sale, uncooked articles of food which have been cold stored without notifying persons pur- chasing, or intending to purchase, the same that they have been kept in cold storage by the display, in a conspicuous place and upon the articles of food, of a sign marked. "These are cold stored goods," in type at least two inches high; and it shall be unlawful to represent or advertise as fresh goods articles of food which have been placed in cold storage. Id. Sec. 9. Unlawful to return cold-stored articles to cold storage: It shall be unlawful to return to cold storage any article of food that has once been released from such storage and placed on the market for sale to consumers, but nothing in this section shall be construed to prevent the transfer of goods from one cold storage or refrigerating warehouse to another; provided, that such transfer is not made for the purpose of evading any pro- vision of this act. Id. Sec. 10. Rules and regulations:— The state Ixiard of health may make rules and regulations to secure a proper enforcement of the provisions of this act. including rules and regulations with respect to the sanitary preparation of articles of food for cold storage, the use of marks, tags, or labels, and the display of signs, and the violation of such rules shall be punished on con- viction, as provided in section 12 of this act. Id. Sec. 11. Penalty:— Any person, firm or corporation violating any of the provisions of this act shall u])on conviction be punished for the first offense by a fine not exceeding five hundred dollars, and for the second offense by a fine not exceeding one thousand dol- lars, or by imprisonment for not more than ninety days, or by both such fine and imprisonment. Id. Sec. 12. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Requisites of a prima facie case — Burden of proof, shifting thereof :—Pvooi 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. P.ul where the warehouseman 68 - CALIFORNIA DECISIONS. shows the rclurn of the goods stored and furtlier that the con- tents of the packages have been lost by leakage or other inherent cause, the burden shifts to the plaintifif to jirove affirmatively that the leakage was caused by the fault of the warehouseman. Taussig ct a!, v. Bode & Haslctt. 134 Cal. 260. Same — Bailee protected by delivery in good faith to bailor: — Where a warehouseman, after having goods in his possession, 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. Marsi- cano. 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 dis- posed 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 ware- house receipt states that the goods are to be returned to the bailor, the one exception stated therein being "damage by elements" the warehouseman is bound to deliver such goods upon presenta- tion of receipt ; the only valid excuse which he can make is for loss or damage resulting from act of God. Pope v. Farmers' Union and Milling Co., 130 Cal. 139. Liability of zvarehousemen — 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 a^ove effect. Taussig et al. v. Bode & Haslett, 134 Cal. 260. CALIFORNIA DECISIONS. 69 Same — Stipulation against liability for loss by fire does not exempt warehouseman from exercise of ordinary care — Burden of proof: — In a receipt issued by a warehouseman it was stated "No liability for fire, etc.'' In an action for conversion of the goods represented by such receipt, the plaintififs established the facts set forth in their petition and it was held the burden was then cast upon defendant to establish afifirmatively the grounds of his defense and that a stipulation in a warehouse receipt that the warehouseman was not to be held liable for a loss by fire did not relieve him of the duty of exercising ordinary care in the safe-keeping of the goods. Dicterle v. Bekin, 143 Cal. 683. Bill of sale — Delivery at warehouse to be zveighed, 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 purpose of being weighed and the warehouse- man 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 ffoods. It was held that the deliverv to the warehouseman con- stituted passage of title to the goods and that the attachment had been improperly made. Greenbaum v. Martinez, 86 Cal. 459. Sale of wheat by ivarehouseman who is also a dealer therein — Necessary evidence: — Where a person is acting as a warehouse- man for the storage of wheat and is also engaged in the business of buying and selling wheat, a sale by him to a purchaser will not be set aside in the absence of conclusive evidence that the wheat so sold belonged to the plaintiff and that it was stored with such warehouseman and then sold by him. Davis v. McNear, 101 Cal. 606. 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 70 CALIFORNIA DECTSIONS. on the purchase price thereof. Goldstonc v. Merchants Ice and Cold Storage Co., 123 Cal. 625. Conversion — Defined to be a tort: — In order to establish con- version a tortious act must be shown. Steele v. Marsicano, 102 Cal. 666. Same — Intermeddling in ignorance of oivner'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 plaintifif's right of ownership or in repudiation of such right. Id. Same — Effect of refusal to deliver: — A demand of the prop- erty and a refusal to redeliver it do not of themselves constitute a conversion. They are merely evidence from which a conver- sion may be established and as evidence may be repelled by proof of inability to comply. The plaintifif must also show the ability of the defendant to comply with the demand at the time it was made. Id. Same — Same — Held to he conversion: — Where a plaintiff' avers that demands were made upon defendant for the redelivery of goods and that defendant persistently refused to so deliver them, it was held that this constituted a sufficient averment of conversion. Faulkner v. First National Bank, 130 Cal. 258. Same — Liability for: — Where a warehouseman, knowing of a claim of title of a third person to wheat stored in his ware- house 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 zvarehouse receipt not demanded: — Where it appeared that the defendant, a warehouse- man, had refused to deliver property of the plaintifif 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 state- ments amounted to a conversion of the property, for which the warehouseman was liable, and he could not set up a defense that CALIFORNIA DECISIONS. "^^ he justified his refusal to deliver the goods on the ground that the receipt therefor had not been tendered to him. it appearing 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 ware- houseman 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 \. Oregon Improve- ment 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 the action, such variance is not fatal. Bancroft v. Haslett et al., 106 Cal. 151. Warehouse, real property: — In the absence of evidence to show that a warehouse, 100 feet by 40 feet (100x40), 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 oivnership 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 ware- housemen and as such doing a general storage business and that prior to a certain date plaintiff 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 bringing the action, the sole owner and holder of said receipt and that on a certain date plaintiff pre- sented receipt to defendants and thereupon demanded delivery of the barley, the defendants refusing to comply with said de- mand ; it was held, upon general demurrer, which set forth that it was nowhere alleged in the com])laint that al the time of the commencement of the action [(laintiff was the owner and entitled 72 CALU-DRMA DIXISKINS. to the possession of the propert}' claimed, that the presentation of the warehouse receipt in exactly the same condition in which it was received hv conijilainant was sufficient allegation of the ownership of the projicrty. The court, however, intimated that a special demurrer might ha\e lieen sustained. J'Ishcr v. Smith, 91 Cal. 260. Stotcmcuts made by a ivarclwuscman — lllicu considered part of res gestae: — When it appears that a warehouseman made state- ments, at the time of the removal of wheat from his warehouse, pertaining to the ownership thereof, such statements will be received in evidence as part of the res gestae. Garoutte v. Williamson, 108 Cal. 135. Claim and delivery — Auxiliary action — Pleading: — In Cali- fornia there is no form of action which is known technically as "claim and delivery." The sections in the Code, under this title, provide an auxiliary remedy for the recovery of personal prop- erty. In a case where an auxiliary 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 by agreement — Limitations of such agree- ment: — Where the lessor of a safe deposit box and the lessee thereof agree that the former "shall use diligence that no un- authorized 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 by bailee, not proper care — Prima facie case: — Held, jury was fully justified in de- claring defendant wanting in the exercise of proper care when it CALIFORNIA DECISIONS. 73 failed to deliver to plaintiff 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. Same — Same — Section 1840, Civil Code, not applicable: — In such a case as the above, the defendant cannot find relief under section 1840 of the Code, which declares that the liability of a depositary for negligence 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 conducting the busi- ness of renting safe deposit boxes contemplates that the bailee shall not know the \alue of the thing deposited. Id. F. Common carrier — Liability as zvarehouseman: — A common carrier becomes liable as a warehouseman only after the transit is terminated and the consignee has been notified 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 October 17th to the 1st of the following June, and during such interval the warehouse and contents are destroyed liy fire, he cannot maintain an action for the recovery of his charges. The con- tract is an entire one and his charges are not due until he has complied with the terms thereof. In the absence of a stipula- tion in such contract that a proportional amount of the storage charges should ])c 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 l)rought by bailor against a warehouseman for conversion of a piano, the defendant alleged that the i)iano was sold for lawful storage ''* CALIFORNIA DECISIONS. charges ami ihal paynient of such charges had l)ccn refused by the ph\intifi' when demanded of him and tliat there is now still (.lue the defendant money for the steerage of the piano. The tindings showed that the defendant did not come into lawful possession of the piano, that plaintiff had demanded its return, which was refused, and that it had been taken from the ])laintiff against his will. It was iicld on the above findings, that the l)laintifT was entitled to damages and a request for further evi- dence was properly denied. Bancroft Co. v. Haslctt, 106 Cal. 151. Sale for stonujc charges — Liable for conversion unless proper notice is given — Ignorance of the otvncrs 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 the warehouseman had failed to note the 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 defendant w^as 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. Stezvart v. Naud, 125 Cal. 596. Same — Facts establishing contract of storage — Improper sale — Code provisions as to sale after sixty days applicable only to stor- age contracts implied by lazv: — Plaintiff shipped package ad- dressed to himself, which upon arrival was stored by the rail- road company with the defendant as warehouseman. About four months later, plaintiff called at defendant's warehouse and was advised as to the accrued charges and the rate per month which at plaintiff's request was written on a card by a repre- sentative of defendant and handed to plaintiff. No demand was then made for the accrued or other charges, and plaintiff was informed defendant would keep the goods "as long as you want." Plaintiff stated he was starting upon a long trip, that he would communicate with defendant upon his return and that the pack- age contained valuable articles. Seventeen months later, on ])laintiff's return from the trip, he wrote to defendant asking for storage l)ill. To this he received a postal in reply, saying the goods had been sold over a year prior thereto for storage CALIFORNIA DECISIONS. 75 charges. It was held that, aUhough under sections 3152 and 3153 of the Political Code, goods might be sold for storage charges after the expiration of sixty days, such provisions re- lated only to contracts implied by law and that under the facts shown in this case an express contract of storage was estab- lished ; that defendant had not waited a reasonable time before selling the goods and hence was liable therefor. Shedondy v. Spreckles Bros. Co.. 9 Calif. App. 398. Same — Jl'heii sheriff bailor — Liability for conversion if he allows sale for storage charges — Order of court necessary: — If a sheriff who has attached property, and in order to protect 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. IVhelan, 133 Cal. 110. Lien for charges — JVhat constitutes a zvaiver thereof :—li 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 ])roperty, this constitutes a waiver of his lien for all of such charges as may have then existed. Black- man 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 Jield 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 — ll'hat constitutes — liffcct of- — Mortgage of stored goods: — Where the mortgagee of one thousand sacks of flour stored with a warehouseman, comes to said warehouseman and exhibits to him the warehouse receipt for such flour and 76 CALIFORNIA nF.riSldNS. requests tliat one thousand or more sacks, of such flour be sepa- rated 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- wriht V. Phoenix. 7 CaL 281. Same — JJlien neeessary: — When a vendor only sells part of the goods on storage, those sold, if stored together and of the same mark, must be separated from the larger mass in order to change the possession; but where (/// the goods of the vender 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. I-Iorr V. Barker, 8 Cal. 603; 5. C, 11 Cal. 393; 5". C, 6 Cal. 489, cited in Ghirardelli v. McDermott,, 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 w^irehouse of B. He sold a portion of it to C, and gave an order therefor on R. who accepted the same and gave C in exchange a receipt for the flour purchased by him, and transferred it on his books to the account of C. There was no separation of specific portion from the flour of A as the prop- erty 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 liability. Adams v. Gorham, 6 Cal. 69. Same— Want of —Estoppel .-—Warehousemen who give their receipt for goods on storge, 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 con- version 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 liable, by reason of there being no segregation. Good- win V. Scannel 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 CALIFORNIA DECISIONS. "^"^ 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 ivarehoiise — Officer's possession by 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. Sinsheimer v. Wliitely. Ill Cal. 378. L. Trover — Transfer of zvarehouse receipt — Conversion — Burden of proof: — Plaintifif stored wheat with a warehouseman and received warehouse receipt therefor; there was no other wheat stored in the warehouse at the time and subsequently the ware- houseman 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 it represented. It further appeared that plaintiff' had pledged his receipt as collateral se- curity for the payment of the loan. I)Ut 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 of the wheat, they should find for the plaintiff, and the jury so found. Upon appeal, this in^- struction was held correct. Garoiitee v. JVilliamson. 108 Cal. 135. N. Loss by fire— Bailor not affected by contract befzveen zvare- houseman and railroad regarding dcstrnctinn of zvarehouse by fire — Negligence: — A warehouseman constructed a warehouse upon land belonging 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. Southrrn Pacific Co., 109 Cal. 96. 78 CALIFORNIA DKClSiONS. Same Of iiicriidiLiry ony'm — Never "act of God" — Negli- i/ence: — Where wheat was destroyed hy lire in a warehouse, such tire heint: <''t inceiuhary origin, the warehouseman is Hahle therefor and cannot set up a defense that the tire occurred with- out his fault. Negligence does not enter into the question in such cases and its absence will not exonerate the warehouseman. Fof>c V. Farmers' Union and Milling Co., 130 Cal. 139. Same — Ihirden of proof on plaintiff — Negligence: — Where it is shown that tiie warehouse, containing goods for which an action was brought, was destroyed by fire, the burden of proof is on the plaintifif to show that such fire was caused by the negli- gence of the w^arehousenian. il'ilson v. SontJicrn Pacific R. R. Co., 62 Cal. 164. Action for recovery of goods embedded from warehouse — Warehouseman may bring one action for the recovery of prop- erty belonging to several bailors: — Where goods belonging to different bailors have been stolen from a warehouse by an em- ployee 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 defendant 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 de- fendants are unable to prove that they came into possession of the property in ignorance of the fact that it had been embezzled from the plaintifT, the burden of proof will be upon them to prove that the identical goods found in their possession are not the miss- ing portion of the goods which the plaintiff still retains in his warehouse. Id. Negligence — Must be shoivn in order to hold ivarehouseman liable: — A warehouseman is only liable for damages caused to property in his custody which arise from his negligence. Reeder V. Wells Fargo & Co., 113 Pac. Rep. 342. Same — When failure to inspect stored goods is not ignorance- Leakage — Stipulation in warehouse receipt — Instructions — Re- versible error: — Where a warehouseman receives spirits for stor- age and the receipt given therefor states that the warehouseman is not responsible for loss resulting from leakage, and other speci- fied causes, this is held to be a notice to the bailor, and the mere CALIFORNIA DECISIONS. 79 failure of the warehouseman to inspect the barrels containinj^ 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 wnll, nevertheless, be liable for the loss, if by the exercise of ordinary care, he could have discovered and curetl the defect or prevented the loss ; such instruction held to be re- versible error. Taiissic/ et al. v. Bode & Haslett, 134 Cal. 260. Same — Burden of proof — JJ'hen defendant must shozv loss not caused b\ his negligence: — Plaintiffs established the delivery of the goods to the defendant warehouseman, his refusal to return and the other matters alleged in their complaint. Upon the evi- dence the court found that the warehouse had been destroyed by fire and that the defendant had been grossly negligent in keeping and storing the goods. The burden was cast upon defendant to show the loss did not arise from such negligence but resulted from some cause with which he was entirely disconnected. Plain- tiffs appealed from a judgment for the defendant and on such appeal the case was reversed with directions to the trial court to make findings of fact in respect of defendant's negligence. Dieterle v. Bekin, 143 Cal. 683. Same — On part of depositor proximate cause of loss — IVare- honseman not liable — Recovery for injury to warehouse: — De- fendant, the owner of a warehouse built out over the water in the bay of San Francisco, was sued by the depositor of hay which was stored there and was lost as a result of the warehouse being demolished during a storm. It was shown that plaintiff had placed in the warehouse, contrary to an agreement with the defendant, an excess of 1 1 1 bales of hay and that plaintiff" had left open the large doors i^f tlie warehouse, thus enabling the high wind to lift the roof. Plaintiff alleged the supports of the ware- house had rotted and that this caused the destruction. Defend- ant, by cross complaint, sought to recover the storage charges and damages for the destruction of the warehouse. The jury returned a verdict for defendant, but for a sum smaller than the storage charges. Plaintiff appealed and it was held the verdict of the jury was justified by the evidence and that as to the storage charges, plaintiff could not be heard to complain that 80 CALIFORNIA DECISIONS. the \eriliol for dofoiulanf was loo small. Smith Co. v. Suttich, 10 Calif. App. 540. Q. irmchoiisc receipt — Definition: — A warehouse receipt has been iletined to be a written contract between the owner of the goods and ihc warehouseman, the latter to store the goods and the former to pay for that service. Sinsheimer v. Whitely, 111 Cal. :^7S; {Hale v. Milwaukee Dock Co., 29 Wis. 488). Same — Issued in the name of one not the depositor — Effect: — Whore 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. Sah et at., 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 receipt, the transfer of which is a good delivery of the goods represented by it. Sinsheimer v. Whitely, 1 1 ] Cal. 378. Same — Issued in name of one not ozvner — No higher evidence of ozvnership, except against warehouseman, than physical posses- sion of goods: — Plaintifif, the manufacturer of merchandise in Ohio, shipped a number of cases of goods to vSan Francisco, con- signed to itself with directions on the bill of lading to notify J. R. Moler upon their arrival. J. R. Moler & Co. was a firm doing business in Denver, who had an agent in San Francisco by the name of Ingold. When the goods arrived, Ingold stored them in the name of plaintiff, care of himself. No warehouse receipt w^as then issued. Later most of the goods were changed to the account of J- R- Moler & Co., care of Ingold, and subse- quently they were transferred to another warehouse and receipt issued in Tngold's name. This receipt Ingold pledged with the defendant bank and obtained a loan thereon. Part of this loan he paid and when the balance became due, he had disappeared. The defendant upon this default sold the goods and for the CALIFORNIA DECISIONS. 81 proceeds of such sale this action was brought by the manufac- turer and owner of the goods. It was held, the possession of a warehouse receipt, except as against the warehouseman, is no higher evidence of ownership than the physical possession of the goods, and that under Section 2991, Civil Code, defendant must show that Ingold had been "allowed" by plaintiff to have posses- sion of the goods. The judgment against the defendant was according affirmed. Akron Cereal Co. v. First National Bank, 3 Cal. App. 198. Same — Estoppel by — Ratification of receipt issued by ware- house corporation by its secretary and manager to himself indi- vidually: — It was shown that a corporation had been in the habit of issuing its negotiable warehouse receipts signed only by its secretary and manager, and to him individually for hay stored by him. After the issuance of the receipt upon which the suit was brought, it appeared that the directors had met and approved the financial statement of the company, which statement showed this particular receipt ; it also appeared that the purchaser of the receipt had inquired of the company's officers as to the storage charges. The company subsequently refused to deliver the hay represented by the receipt upon the ground that there had already been delivered all the hay to the credit of the secretary and manager. It was held that the company had ratified this receipt and further it was estopped to contradict the receipt as to its possession of the amount of hay represented thereby. Riley v. Loma Vista Ranch Co., 1 Cal. App. 488. Same — Negotiability: — Warehouse receipts are negotiable un- less 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 Railu^ay Co., 110 Cal. 348; Garoutte v. JJ'illiamson, 108 Cal. 135; Bishop v. Fitlkrrth. r.S Cal. 607; r)a7'is v. Ru.^sell et al.. 52 Cal. 611. Same — Same — Consideration: — A i^-c-existing debt constitutes a sufficiently valuable consideration for a transfer of a warehouse receipt. Davis v. Russell et al., 52 Cal. 611 ; Bishop v. Fnlkerth, 68 Cal. 607; Cavallaro v. Texas and P. h'. k'. Co.. 110 Cal. 348. Same — Same — Fffect of order: — Untlcr act uf 1S7(S (Statutes. 1878. page 949) a warehouseman is authorized to deliver goods in cases where a negotiable receipt was issued therefor only upon 6 8- CALIFORNIA DECISIONS. return and (lcli\orv to him of such receipt. In a case where a non-negotiahlc receipt had hccn issued tlie \varelK)Usenian can ileHver the sjjoods upon a written order of the i)erson who had deposited them. W'liere a warehouseman receives an order from a bailor directing him to deliver goods standing to his credit, the warehouseman cannot be presumed to have concluded that the receipt issued therefor was a negotiable receipt, but, on the con- trary, the inference is th.at it was non-negotiable. Goldstone v. Merchants' Ice & Cold Storage Co., 123 Cal. 625. Same — Noii-negotiablc — Transfer — Intention of the parties: — In an action upon a non-negotiable receipt by the transferee it was found by a jury that it was the intention of the parties by such transfer to pass the right to the possession of the goods represented as well as the possession of the receipt and that the receipt was not transferred merely as evidence of good faith in a pending business transaction as contended by defendant. Although the receipt was non-negotiable on its face, neverthe- less, sections 1858b and 1858d of the Civil Code are not applicable because the intention of the parties had been conclusively deter- mined 1)y the jury. Callahan v. Marshall, 126 Pac. 358, 163 Cal. 552. Same — Assignment of mortgage — Preference under the insol- vency! act: — The assignment of a warehouse receipt made by the mortgagor 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 represent- ing 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 Improvement Co.. 87 Cal. 566. Same — Delivery zvhen 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 constitute warehouse re- ceipt: — The mere transfer of weighing tags upon which it was CALIFORNIA DECISIONS. 83 Stated "\\'eighed for forty (40) sacks beans," cannot be lield to constitute warehouse receipts therefor sufficient to pass the title to the property represented. The court further held, that there must be something on the face of the instrument to indicate 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. Sinsheimcrv. JVhitely, 111. Cal 378. Same — Delivery of order on warehouseman — Effect: — As be- tween parties, the delivery to a purchaser of an order on a ware- houseman 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 warehouse- man, 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. Brozvn & Hershey, 122 Cal. 621. Same — Same — What a ivarehoiiseman 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 repre- sented in the bogus receipt, the warehouseman may show the date on which the clerk, who executed such false receipt, left his emiMoy. and further, that the grain designated in the receii)t was not in his warehouse at the time stated therein. Id. R. Bill of lading — Stating "contents iinknozvn": — A common car- rier 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 liahilily: — A stipulation in a bill of lading to the effect that the .arrier would not be liable for a greater sum than fifty dollars, if the i)ackage were lost, unless its true value were given, held to be valid. Thi> true even though the loss resulted from S4 CALIFORNIA DECISIONS. the negligence of the carrier. Michalitschkc Brothers v. Wells, Far(/o &■ Co., 118 Cal. 683; Hart v. Pcmia R .R. Co., 112 U. S. 34 L Same — Effect of transfer — Sa})ie as ivarehousc receipt: — An assignment of a bill of lading passes title to the goods repre- sented thereby. The effect of llic assignment of a warehouse receipt does not differ materially from that of the assignment of a l)ill of lading. Da2'is v. Russell, 52 Cal. 611. T. J)ijiirics to persons by zvarehoiisenicn — Visitor injured by lieaz'V bale falling upon him — Negligence: — Where a person came to a warehouse for the purpose of delivering a paper there, as he was in the habit of doing daily, and, while passing through a passageway, through which persons having business at the ware- house were accustomed to pass, was killed by having a large bale of goods thrown upon him by employees of the warehouse- man, 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 con- tributory negligence on the part of the deceased. O'Callaghan v. Bode, 84 Cal. 489. Goods sold b\' 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 embezzlement is a species of larceny. The People v. Perini et al., 94 Cal. 573. COLORADO LAWS. 85 CHAPTER VI COLORADO LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Colo- rado, with the exception of the last two sections which are omitted. It was approved April 25, 1911. Sess. Laws 1911, Ch. 226, p. 653, also this volume, p. 1. The sixtieth section of the Act is as follows : Inconsistent legislation repealed: — Sections 7017, 7018, 7019, 7020, 7021, 7022 and 7023 of the General Statutes of Colorado. 1908, and all acts or parts of acts inconsistent with this act are hereby repealed. Freight uncalled for thirty days may be stored and re- tained for charges — Notice in three days: — When any goods, merchandise or other property shall have been received by any railroad or express company, or other common carrier, commis- sion merchants or warehousemen, and shall not be received by the owner, consignee, or other authorized person, until the ex- piration of thirty days, it shall be lawful for the said carrier, commission merchant, or warehousemen to hold the same, or the same may be restored, with some responsible person, and be re- tained 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 said railroads or express com- panies or other common carriers, commission merchants, or ware- housemen, shall notify the owners or consignees of the receipt of such goods, merchandise, or other property, within three days from the receipt thereof. Rev. Stats. Colorado. 1908, Sec. 6893. Not called for in ninety days, be sold — Twenty days, publi- cation — Surplus: — If no person having a right thereto call for .said goods, merchandise or other property, within ninety days from the receipt thereof, and pay freight and charges thereon, it shall be lawful for such carrier, commission mer- chant or warehouseman, to sell such goods, merchandise or other 86 COLORADO T.AWS. property, or so imicli llRicof. at auction to the highest bidder, as will pay said freight and charges, lirst having given twenty days' notice of the time and place of sale to tlic owner, con- signee or consignor, if kncnvn. 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 ]iaying 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 ])eing made therefor, within ninety (90) days. Id. sec. 6894. 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 surplus 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) year, then the same shall be forfeited and paid to the general school fund of the county. Id. Sec. 6895. When carrier's liability ceases — Liability of warehouse- men: — After the storage of goods, merchandise or property, as herein 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. Id. Sec. 6896. Commissionman — Warehouseman — May sell in 90 days — Publication: — When any commission merchant or warehouse- men shall receive on consignment, or on storage, produce, mer- chandise, 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 which 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. Id. Sec. 6897. (Section 2 referred to is section 6894.) COLORADO LAWS. 87 Perishable goods — Notice — Sale — Notice to owner — Affi- 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 disposing 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 of 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 so sell and dispose of such goods, merchandise or other property, and the time and place of such sale, either by personal notice or by letter addressed 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 reside at a dis- tance, 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 inquiry, 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 behalf, to be filed and preserved by the carrier, commission merchant or warehouse- man, and ])y them to be produced and exhibited to any person claiming an interest in the goods sold, or to be sold, as afore- said, such goods, merchandise and other property may be sold as aforesaid witliout notice. Id. Sec. 6898. (Sec. 2 referred to above is section 6894.) Lien of common carrier on goods and baggage: — Every common carrier of goods or passengers who shall, at the request of the owner of any personal goods, carry, convey or transport the satue from one place to another; and any warehouseman or other person who shall safely keep or store any personal property at the recjuest of the owner or person lawfully in possession thereof, shall in like manner have a lien upon all such personal property for iiis reasonable charges for the transportation, stor- 88 COLORADO DECISIONS. age or keeping thereof, and for all reasonable and proper ad- vanees made thereon by him. in accordance with the usage and custom of common carriers and warehousemen. Jd. Sec. 4014. Embezzlement by carriers, warehousemen, etc.: — A carrier. warehouseman, factor, storage, forwarding or commission mer- chant, or his clerk, agent, or employe, who, with intent to de- fraud, sells, or in any way disposes of. or applies or converts to his own use. any bill of lading, custom house permit, or ware- house keeper's receipt, entrusted to or possessed by him. or any property entrusted 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 conviction 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 embezzled, as aforesaid, is over twenty dollars, then by imprisonment in the state penitentiary for a period of not less than one nor' more than two years. Id. Sec. 1693. DECISIONS AFFECTING WAREHOUSEMEN Bailment— Conversion:— 'SM\\tr& a bailee pledges property I which has been intrusted to him and the pledgee accepts the same in good faith, believing the property to belong to such Ijailee. the right of the owner therein is not defeated and he may recover the property or its value from the. pledgee., The ])ledging of ])roperty by a bailee constitutes conversion thereof. Gottlieb \. Hartman, 3 Colo. 53. B. A"o title in depositor — Judgment for intervenor: — An action was brought against a warehouseman for the conversion of goods stored with him in which action .one B intervened claim- ing the title to the property. The complaint alleged that the plain- tiff had loaned money to the depositor, who had, in turn, assigned the warehouse receipt issued for the goods to the plaintiff. That the ])laintifTf had paid all the storage charges due the defendant and demanded the goods and had been met with a refusal to de- COLORADO DECISIONS. 89 liver. The defendant warehouseman answered and denied that the property belonged to the original depositor, alleging that he jiad 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 ignor- ance of the matter set forth by the defendant concerning said lack of title. Subsequent to the filing of the foregoing plead- ing, B intervened 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 w^as entitled to the possession of the property and assessed its value. On this verdict the court entered judgment in favor of the intervenor 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 possession of the property was awarded to the intervenor and the value thereof was assessed, but there was no finding either against the plaintiff or the defendant specially. That the judgment did not follow the verdict and it was against a party who had incurred no lia- bility to the intervener. Further that as no judgment had been rendered for or against the defendant 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 zvarehouse receipt — Statutes pertaining to chattel mortgages do not apply: — Where money had been 1)or- rowed upon a warehouse receipt as collateral security, it was contended that the statute relating to the recording of chattel mortgages applied. Tt 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 ref|uired by the statute was intended to alter or en- large the meaning of the language there used beyond its ascer- tained legal sense, or to abrogate any of the settled and well i)0 COLUKAIK) DliClSlONS. recognized common-law modes of (lie delivery of personal prop- ertv. That, therefore, the relation of the parties in respect to their rights to the property is unaffected by the chattel mortgage act. Sf^aiu/lcr v. Buttcrficid, 6 Colo. 356. K. Presentation of receipt waived: — A warehouseman who did not base his refusal to return goods stored with him upon the fact that the warehouse receipt was not presented, and instead stated another and dififerent ground, was, in an action of replevin for the goods, held to have waived his right to demand the re- ceipt before delivering the goods. Duffy v. Wilson, 98 Pac. 826. N. Loss b\ fire — Storimj of poivder in a zvarehouse, negligence — Proximate causes — Questions for the jury: — Where the evidence showed that defendants, who were engaged 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 suppressing the fire were prevented, by the presence of the powder in the warehouse from removing plaintift''s goods; in such a case, the question whether the pres- ence of the powder was the proximate cause of the loss of the goods is one for the jury. The storing of powder in a ware- house 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 h\ theft— Breach of agreement to compromise— Action based on agreement to compromise alone: — The defendant ware- houseman 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 de- fendant, 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 origin- ally liable, under the law as a warehouseman, for the loss. It was held that the action was not brought uix)n the original liability COLORADO DECISIONS. ^^ of the defendant but upon the compromise agreement and that, therefore, this contention could not be sustained. Szveii v. Green, 9 Colo. 358. Q. 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 assign- ment and delivery of the receipt, the property represented thereby must be in existence and stored at the place designated therein ; second, a valid consideration which may consist of a pre-existing debt, or a transfer as collateral security. Hill v. Colo. Nat. Bank. 2 Colo. App. 324. Same—Fraudulent transfer, question for //try.-— The question whether or not the transfer of a warehouse receipt was procured with fraudulent intent, is one of fact for 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 purchaser 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 ware- house, the purchaser 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 notified 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 sherifif and obtained a judgment for the possession of the property. It was held on ai)peal llial (he 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 posses- sion of the goods without taking security thercff)r was less grounded in er|uity ihan that of llie pledgee wlio. in good faith. 92 COLORADO DECISIONS. had ;ul\aiK-e(l ukmiov upon the warehouse receipt as security. SpaiK/lcr V. lUiiti-rficld, () Colo. 356; First Nat. Bank v. Schmidt ct al., 6 C. A. '2\b: Scluiiidt c'r Zciglcr v. First Nat. Bank, 10 C. A. 261. Same — Exemptions in: — Plaintiff stored a quantity of apples with defendant warehouseman, the receipt received having en- dorsed thereon "At owner's risk." The apples were damaged by having become frozen. Held, the negligence of defendant was in the management of the warehouse in not exercising ordi- narv care to protect the apples against the unusually cold weather, and that the provision in the receipt did not relieve the ware- houseman from the duty to exercise ordinary care in the preser- vation of the goods. Verdict for plaintiff affirmed. Denver Pub- lic ]]\irehouse Co. v. Munger, 20 Colo. App. 56, 60. R. Bills of lading — Exemptions in — Assent thereto implied by acceptance: — Where one accepted and acted under the bill of lading, containing exemptions against the liability of the car- rier, 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. 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 from his fraud, negligence or mis- feasance. Union Pac. Ry. Co. v. Rainey et al., 19 Colo. 225 ; Transportation Co. v. Comfortli, 3 Colo. 280. CONNECTICUT LAWS. 93 CHAPTER VII CONNECTICUT LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Connecti- cut. It was approved July 17, 1907, see Public Acts. 1907. ch. 220, p. 155, also this volume, p. 1. Establishment — Receipts: — Any person may establish and maintain a public warehouse, and may receive on storage into the same any goods, wares, merchandise, provisions, or other commodity, and shall issue to the person from whom he re- ceives the same warehouse receipts therefore; and he may issue warehouse receipts for any of his own property which is de- posited in such warehouse; but no person shall issue any re- ceipt for any such property so received by him on storage, or deposited by him in such warehouse, unless he shall have dis- played and shall maintain in a conspicuous manner, on the front of the building where such goods or other commodities are stored, the words "Public Warehouse." General Statutes. 1902, sec. 4919. Package containing cold storage, preserved, or incubated eggs to be labeled: — Every person, firm or corporation who shall sell or offer for sale any eggs which have been preserved by any artificial process, or which have been kept in storage for more than fifteen days, in any place where the temperature is re- duced by means of chemicals or other agents, or which have been incubated for twenty-four hours or more, shall affix to the pack- age or receptacle containing such eggs, and the package or re- ceptable in which they are delivered, conspicuously displayed with such eggs a label or placard bearing in plain letters not less than one inch in height, the words "cold storage eggs," or "preserved eggs," or "incubated eggs," as the case may be. Act approved May 26. 1913. Public Act. Conn. 1913. Chapter 105, page 1697, sec. 1. Provision for eggs brought into the state: — No eggs shall ^* CONNECTJlir DECISIONS. l)c hrouylu into this slate tlial have been liekl in cold storage, or preserved hv any process, or incubated, unless the package con- taining said eggs shall be marked or labeled in accordance with the provisions of this act. Id., sec. 2. Penalty: — Any person who shall fail to comply with the pro\isions of this act, or who shall knowingly misrepresent the condition or quality of any eggs which have been kept in cold stor- age, preserved, or incubated, shall be fined not more than twen- ty-live dollars. Id., sec. 3. • Powers of dairy and food commissioner: — The dairy and food commissioner shall ha\c the same powers with respect to the detection and prosecution of any unlawful sales of cold stor- age, preserved, or incubated eggs under the provisions of this act as are now conferred upon him with reference to the sale of butter, vinegar, or other food products. Id., sec. 4. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Bailee may recover full Taliie fur loss occasioned by third person — Bailee represents Oivner.- — If goods intrusted to a bailee are lost by the wrongful act of a third person, the lat- ter is liable to him for their full value, unless the owner inter- poses by a suit for his own ])rotection. Any sum recovered by the bailee, above what is necessary to compensate him for the loss of his ])ossession and special property, 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, be- cause 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 dis- poses of them, or any part of them, to his own use, it is lar- ceny. State V. Fairclongh. 29 Conn. 47. Bailment and r^:c distinguished: — The delivery of grain to w mill owner under a contract containing a clause as follows: "And it is further understood that the party of the second part (mill owner) shall be rcsponsil)lc for all grain sold, shall collect all CONNECTICUT DECISIONS. 95 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 l^e regarded as surplusage 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 ordinary care in the protection of goods intrusted to him. The removal of such goods to another place where the risk of loss is not in- creased, but without the consent of the bailor, held not to be violative of his duty as to ordinary care. Bradley v. Cunning- ham, 61 Conn. 485; Allen et all. v. Soniers, 72) Conn. 355. Conversion — Allegation and proof of title not necessary: — A bailor may sue his bailee for the latter's conversion of the thing bailed. The present right of possession at the time of conver- sion is sufficient to support an action of trover. Ownership is un- necessary to be alleged or proved as the bailee is estopped from denying the title of his bailor, no paramount title having inter- vened. Barker v. Lezvis, S. & T. Co., 79 Conn. 342, 344. H. Action for storage charges — Absence of express agreement as to temperature: — The plaintiff, a warehouseman, brought an ac- tion 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 com])ensation claimed was due, but alleged by way of counter- claim that the plaintiff had not used due care in the preservation of the poultry and that as a result it had ])een 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 j)eriod of time and that it was known to the defendant that the plaintiff's warehouse was not a "freezer." The trial 96 CONNECTICUT DECISIONS. court hold that upon tlie facts found, the plaintiffs had sustained the hin'dcn of sho\vin; Candee v. A^. ¥., N. H. & H. R. R. Co., 73 Conn. 667. But see Coupland v. Housatonic R. R. Co., 61 Conn. 532. Same — Same — Liability may be reduced by stipulation: — It is competent for a carrier 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. DELAWARE LAWS. ^^ CHAPTER VIII DELAWARE LAWS PERTAINING TO WAREHOUSEMEN Lien of commission merchant, factor and carrier — Demand — Sale — Advertisement: — In all oases in which commission merchants, factors and all common carriers, or other persons, shall have a lien under existing laws upon any goods, wares, mer- chandise, or other personal property, for or on account of the costs or expenses of carriage, storage, or labor bestowed on such goods, wares, merchandise, or other personal property, if the owner or consignee of the same shall fail or neglect, or refuse to pay the amount of charges upon any such property. goods, wares, or merchandise, within sixty days after demand thereof, made personal upon such owner or consignee, or at his last known i)lace of residence, then in such case it shall and may be lawful for any such commission merchant, factor, com- mon carrier, or other person having such lien as aforesaid, after the expiration of said period of sixty days, to expose such goods, wares, merchandise, or other personal property to sale at public auction, and to sell the same, or so much thereof as shall be sufficient to discharge said lien, together with costs of sale and advertising: Provided, that notice of such sale, together with the name of llic person or persons to whom such goods shall have been consigned, shall have l)con llrst published, for three successive weeks, in a newspaper i)nblishe(l in the county, and ])y six written or ])rinted hand-bills, put up in the most public anc! conspicuous ])laces in the vicinity of the depot where said goods may be. Revised .Statutes of Delaware 1893, page 816, being Act of March .S. 1867. Law^s of Delaware, Vol. 13, Chap. 164. Sec. 1. Of application to dispense with notice — Proviso: — Ui^on the ai)i)lication of any of the jjcrsons or corjjorations having a lien upfMi goods, wares, merchandise, or other property, as mentioned in the first section of this act, verified by affidavit, to any judge 100 DELAWAKli LAWS. of the SupcriiM- (."(Uirt of this State, or to the Chaneellor setting forth that the plaee of residence of the owner or consignee of anv such goods, wares, nicrclianchse, or other property is un- known, or that such goods, wares, merchandise or other property are of such perishal)le nature, or so damaged, or showing any other cause that shall render it imi)ractical)le to give the notice as required in the i'lrst section of this act, then, in such case, it shall and may be lawful for the Judge, or Chancellor, hearing such a])i)lication. to make an order, to be by him signed, author- izing the sale of such goods, wares, merchandise, or other prop- erty upon such terms as to notice as the nature of the case may admit of and to such Judge shall seem meet; Provided, that in case of perishable property, the affidavit and proceedings re- quired by this section, may be had before a Justice of the Peace. Id. Sec. 2. Surplus moneys: — The residue of moneys arising from any such sales, either under the hr.st or second sections of this act, after deducting the amount of the lien as aforesaid, together with costs of advertising and sales, shall I)e held subject to the order of the owner or owners of such property. Id. Sec. 3. Warehouse receipts made negotiable: — Warehouse receipts given for any goodi, wares, merchandise, grain, fiour, produce, petroleum, or other commodities stored or deposited with any warehouseman, wharfinger or other person 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 i:)erson, 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 i)ayment 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 consent of the holder of said re- ceipt or bill of lading indorsed thereon ; provided, that all ware- house receipts or bills of lading which sliall have the words DELAWARE LAWS. 101 "not negotiable" plainly written or stamped on the face thereof shall be exempt from the provisions of this act. Revised Statutes of Delaware. 1893. p. 530, being Act of May 15, 1891, Laws of Delaware, vol. 19, ch. 177, sec. 1. When warehouseman may issue receipts: — No warehouse- man, wharfinger, or other person shall issue any receipt or voucher for any goods, wares, merchandise, petrole- um, 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- ceived into store or upon the premises of such warehouseman, wharfinger or other person and shall be in store or on the prem- ises aforesaid and under his control at the time of issuing such receipt. Id. sec. 2. Duplicate receipts: — No warehouseman, wharfinger or other person shall issue any second or duplicate receipt for goods, wares, merchandise, petroleum, grain, flour, 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 uncancelled without writing across the face of the same "duplicate." Id. sec. 3. Sale or incumbrance of stored property prohibited :^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. Violation of act — Fraud — Penalty — Damages: — Any ware- houseman, 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 ex- ceeding five years, or both, in the discretion of the court; and all and every person or j^ersons aggricxed 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 ihc fore- 'Op DELAWARE LAWS. going provisions of tliis act to receive (recover) all damages which he or they may have sustained by reason of any such vio- lation as aforesaid, before any court of competent jurisdiction, whether such person shall have been con\ ictcd of fraud as afore- said under this act or not. Id. sec. 5. What the term "food" includes — Exception: — 1'he term food as used in this act shall include any article used for food or drink by man or animal, with the exception that it shall not in- clude and api)ly to the storing and refrigerating of fruits, or of fish. An Act relating to cold storage and refrigerating ware- houses and places, and the sale or disposition of the food kept or preserved therein. Approved April 19, 1911 — Delaware Laws 1911, page 350, Chap. 177, Sec. 1. Food, except fruits, or fish, must be branded, stamped or marked: — It shall hereafter be unlawful for any person or persons, corporation or corporations, engaged in the business of cold storage warehousemen, or in the business of refrigerating, to receive any kind of food, with the exception of fruits, or fish unless the said food or the package containing the same is brand- ed, stamped or marked, in some conspicuous place, with the day, month and year when the same is received for storage or refrig- erating. Id. Sec. 2. Unlawful to permit any article of food to be taken away, unless stamped or marked: — It shall be unlawful for any per- son or persons, corporation or corporations, engaged in the busi- ness of cold storage warehousemen or in the business of refriger- ating within the .State of Delaware, to permit any article of any kind whatsoever, used for food, now in the possession of any person or persons, corporation or corporations now engaged in the business of cold storage warehousemen or refrigerating, to be taken from their possession without first having branded, stamped or marked on the said stuffs or the package containing the same, in a conspicuous place, the day, month and year when said food stuffs or package was received by any per.son or persons, corpora- tion or corporations engaged in the business aforesaid. Id. Sec. 3. Shall not keep in storage more than six months without consent of Board of Health: — It shall hereafter be unlawful for any person or persons, corporation or corporations, engaged in the business of cold storage warehousemen or refrigerating within the State of Delaware, to keep in storage for preservation DELAWARE LAWS. 103 or otherwise any kind of food or any article used for food for a longer period than six calendar months without the consent granted as hereinafter provided by the Board of Health having jurisdiction, or its duly authorized agents or officers, or except as hereinafter otherwise provided. Id. Sec. 4. Board of Health given power and authority to inspect and supervise — May adopt rules and regulations — May appoint persons to make inspection: — ^The State Board of Health or the local Board of Health within the limits of any Municipal Corporation having such local Board, is vested with full power and authority to inspect and supervise all places in the State of Delaware now used or hereafter to be used for cold storage or refrigerating purposes ; the members of the Board of Health having jurisdiction as aforesaid, or the duly authorized agents or employees of said Board shall be permitted access to such place or places and all parts thereof at all times for the purpose of seeing that said place or places are kept and maintained in a clean and sanitary manner, and for the purpose of deter- mining whether or not the provisions of this act or any other act relating to food stufifs are being complied with. The power or supervision hereby granted shall extend to enable the State Board of Health as aforesaid to adopt such reasonable rules and regulations as may be determined upon from time to time as essential to the proper protection of the consumer of the com- modities kept and preserved in such place or places, and the Board of Health having jurisdiction as aforesaid may appoint and designate from time to time such person or persons as they deem it fit for the purpose of making such inspection. Id. Sec. 5. Shall submit a quarterly report to the Board of Health — When such report shall be filed: — All persons or corporations engaged in the business of cold storage warehousemen or in tlie business of refrigerating in the State of Delaware shall sui)mit a quarterly rc])ort to the Boarri of Health having jurisdiction as aforesaid u])on printed forms to be provided by said Board of Health, setting forth in itemized particulars the quantity of each and every food stufif in storage or in the control of said per- son or persons, corporation or corporations; said quarterly report shall be filed on or before the twenty-fifth day of J'lnuary. April, July and October, of each year, and rei;)orts so rendered shall show conditions existing upon the first day of the month in which said report is filed. Id. Sec. 6. 104 UELAWARK LAWS. In the event of food being kept longer than six months — Time may be extended — Not longer than eight months :— In the event of any food or any article used for food being kept or maintained in refrigerating or cold storage places for a longer period than six months, report of such fact shall be filed by the person or persons, corporation or corporations operating such cold storage or refrigerating place with the Board of Health having jurisdiction as aforesaid, upon blanks so provided by said Board of Health upon application, and no such food or article used for food shall, after the expiration of said |)eriod of six months, be delivered to any person or persons, cor])oration or corporations, without a certificate from the Board of Health having jurisdic- tion as aforesaid first had and obtained authorizing such delivery. Power is hereby given to said Board of Health, or its proper agents, to extend the time when any particular food stuff or arti- cle used for food may be kept, maintained or preserved in such ])lace or places, but in no event shall permission be given to keep or maintain or preserve any food stuff for a longer term than eight months from the date of its reception in such place or places. Id. Sec. 7. Transfer of food prohibited: — The transfer of any food from one cold storage or refrigerating warehouse to another for the purpose of evading any provision of this act is hereby prohibited. Id. Sec. 8. Food kept for longer period shall be sold at auction — Within sixty days after time limit — Condemned food to be destroyed: — Any food kept or preserved in any cold storage warehouse or refrigerating place for a longer period than herein provided for shall 1)e sold at public auction by the person or per- sons, corporation or corporations having the custody of the same, and at the place where the same is kept or preserved, with- in sixty days after the time limited for the keeping or preserv- ing thereof, unless said food has been condemned as unfit for use by the Board of Health having jurisdiction as aforesaid, in which case it shall be destroyed or otherwise disposed of under such conditions as the said Board of Health may prescribe. Id. Sec. 9. Poultry, or game, must have been drawn — Eggs to be kept in original crate or package — Marked with the date: — That it shall be unlawful for any person or persons, corporation or cor- DELAWARE DECISIONS. " 10^ porations, firm or agent to dispose of poultry or game within the State of Delaware, that has not been drawn before being placed in cold storage. And that it shall be unlawful for any person or persons, corporation or corporations, firm or agent to dispose of any eggs that have been kept in cold storage except from the original crate or package, said crate to be marked with the date when said eggs were placed in said cold storage or refrigerator. Id. Sec. 10. Penalty for violation of the provisions of the act: — Any person or persons, corporation or corporations, or officer or of- ficers thereof, violating any of the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than one hundred dollars or more than one thousand dollars, or shall be imprisoned for a term not less than sixty days or more than one year, or shall be sentenced with a fine or imprisonment or both in the discretion of the Court. Id. Sec. 11. Shall not apply to fruits or fish:— Nothing in this act shall be held to affect or apply to the storing or refrigerating of fruits or fish. Id. Sec. 12. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment defined: — A bailment consists in the delivery of some personal property, the subject of larceny, by one person to an- other, to be held according to the purpose or object of the de- livery, and to \)Q returned or delivered over when that purpose is accomplished. State v. Sicnkicivies, ct al, 55 Atl. 346. Bailment — IVitli and tvithout an interest: — In a bailment to keep property without an interest the bailee is liable 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. 266; Cidbreth V. P. W. & B. R. R. Co., 3 Houst. 392. B. Ordinary care: — Warehousemen are obliged to exercise only ordinary care. McHenry v. P. IV. & B. R. R. Co., 4 Harr. 448; Ctuue v. Mabcrrx. 3 Harr. 266; Cidbreth v. P. W. & B. R. R. 106 DELAWARE DECISIONS. Co.. 3 Houst. 392; H. J. Keith Co. v. Booth Fisheries Co., 87 Atl. 715. Same — Reasonable diligence defined — Reasonable diligence is that which a prudent man would use in respect to his own prop- erty. Id. H. Lieu — Lost if possession be surrendered: — If the bailee sur- renders 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 re- plevin brought, although defendant may have come into pos- session of the goods lawfully. Stockzvell v. Robinson, 9 Houst. 313. Cold storage — Averments in Declaration Alleging Damage: — The warehouse mentioned in the first and second counts of the declaration was described as a "cold storage warehouse" but there was no averment that defendant had agreed to keep plain- tiff's eggs in a frozen condition. The court pointed out that it was a well known fact that all articles stored in a cold storage warehouse were not kept frozen and hence, upon demurrer, these counts were held insufficient in this particular. In the third count not only was the warehouse described as a cold stor- age warehouse but the averment was made that the defendant well knew that the goods were to be kept frozen therein. The court held this count contained a sufficient averment of the de- fendant's duty and hence the demurrer thereto was overruled. H. J. Keith Co. v. Booth Fisheries Co., S6 Atl. 166. N. Negligence — Warehouseman entitled to storage charges up to time of injury of goods: — While a warehouseman is liable in damages for injury to goods resulting from his negligence never- theless he is entitled to reasonable expenses for storage up to the time the injury was done to the goods and the amount allowed the owner of the goods for the injury should be reduced by the amount allowed the warehouseman for expenses of storage. H. J. Keith Co. v. Booth Fisheries Co. 87 Atl. 715. DELAWARE DECISIONS. 10*? Same — Burden of proof: — Where property is damaged while in the exclusive custody of a warehouseman it is incumbent upon him to satisfy the jury that the damage was not occasioned by the negligence of himself, his servant or agent. Id. O. Measure of damages — Interest: — Where stored property has been damaged as a result of the defendant warehouseman's neg- ligence the jury should return a verdict for a sum of money which would reasonably compensate plaintiff for the loss he has sustained and interest thereon. The measure of damages in such a case is the difference between the value of the goods in their damaged state and what would have been their value if de- fendant had kept and delivered them in good condition. Id. 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 indorser can- not affect the title of the indorsee in good faith. The volun- tary delivery of a bill of lading consigning goods "to order or assigns" confers all the external indicia of the right of disposal. Mears v. IVaples, 3 Houst. 581 ; Same v. Same, 4 Houst. 62. lOS DISTRICT OF COLUMBIA LAWS. CHAPTER IX DISTRICT OF COLUMBIA LAWS PERTAIN INC, TO WAREHOUSEMEN Hie Utiiforni W^areliouse Receipts Act is in force in the Dis- trict oi ('()lunil)ia. It was aj^proved Y\])ril 15, I'MO, 36 U. S. Stats., at L.. Part I, ch. 167, p. 301 and I), of C. Code, 1911, p. -11'^; also tliis volume p. 1. Lien of warehousemen: — Every person, firm, association, or corporation lawfully engaged 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 there- with, may be enforced by sale at public auction, after thirty days' notice in writing mailed to the last known address of the person or persons in whose name or names the said property so in default was stored, and said notice shall also be published 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 l)ailor of such goods, wares, merchandise, or personal property, his assigns or legal representatives. D. C. Code, 1902. sec. 1619. Assignee: — Said property may be 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 assigned or transferred the title thereto and have duly recorded said assignment or transfer upon the books of the stor- age warehouse, the written notice of sale shall also be mailed to said transferee or assignee. Id. sec. 1620. DISTRICT OF COLUMBIA DECISIONS. 109 Where title in issue: — Whenever the title or right of pos- session to any goods, wares, merchandise, or personal prop- erty on storage shall be put in issue by any judicial proceeding, tlie 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 paymenr as part of the costs in such proceeding, or, if defeated therein, he shall l)e credited with such payment in taxation of costs against him. And unless the person, firm, association, or cor- poration 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 thev shall not be made a party to such judicial proceedings. Id. sec. 1621.* Warehousemen — Embezzlement: — Any warehouseman, fac- tor, storage, forwarding or commission merchant, or his clerk, agent, or employee, who, with intent to defraud the owner thereof, sells, disposes of, or applies or converts 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 em- bezzlement, and shall suffer imprisonment for not more than ten years. Id. sec. 838. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Identical goods: — Where one receives certain bonds and contracts for "the safe return of said bonds," his obliera- tion is to return ihc identical Ijonds and not an equivalent amount in similar Ixjnds. Moses v. Taylor 6 Mack. 255. Same — Bailee cannot confer title: — A mere bailee for hire, though in possession, cannot give title to a third person. Bridget V. Cornish, 1 Mack. 29. Same — When convertible into a sale — Assumpsit : — Goods de- livered with the understanding that the bailee may, at his op- tion, ajjpropriate them lo his own use and pay their value, is * Note. In New York a Rtatutc similar to section 1621 held iiiicoiistilutional. Sec Cottcw V. Uubc, 32 Misc. 6.32; Follett Wool Co. v. Albany Terminal Warehouse Co., 61 App. Div. 296; Mulligan v. Brooklyn Warehouse & Storage Co., 34 Misc. 55. 110 nisTRirr of Columbia decisions. a liailment 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. Sainc— Statute of limitations: — It is only from the time that the bailee sets up an adverse claim to the property that the stat- ntc is put in operation and begins to run. Marr v. Kuhel, 4 Mack. S77; Moses v. Taylor, 6 Mack. 255. B. Conversion — Not embesdement: — A bailee who converts prop- erty of his bailor to his own use is not thereby guilty of embez- blement in this jurisdiction, but is guilty of a breach of trust. J'iedt V. Evening Star Nezvspaper Co., 19 D. C. 534. (But see sec. 838, D. C. Code, supra.) Storage charges — When tender not necessary^ — Replevin:^ — Where a demand is made upon a warehouseman for the delivery of goods stored with him a tender of the storage charges is not necessary before replevin brought, where refusal to deliver is based upon another and a different ground. Wall v. De Mit- kiczvicz, 9 App. D. C. 109. Same — When charges not paid, writ zvill be qxiashed: — 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 the warehouseman. In re American Se- curity & Trust Co., 25 W. L. R. 7Z2). C. Safe deposit — Receipt — Contents in "possession" of lessees: — Wliere a receipt for a safe deposit l)0x stated it was only to be opened in the presence of ])oth lessees it attempted to impose an unusual liability upon the company which was possibly beyond the power of the lessees to impose. Contents held to be in lessees' "possession"" Carusi v. Saz'ary, 6 App. D. C. 330. Same — Contents subject to attachment — Bailee liable to be garnisheed therefor: — Under the provisions of sections 447, 456 and 1089 of the District of Columbia Code, property of a de- fendant in a safe (le])osit box in a trust company may be reached by a writ of garnishment against the trust company. Washing- DISTRICT OF COLUMBIA DECISIONS. HI ton Loan & Trust Co. v. SusqueJtanna Coal Co., 26 App. D. C. 149. H. Lien 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 dur- ing sale, on a motion to quash this writ it was held that the act of Congress of May, 1896, relating to warehousemen was mandatory giving warehousemen a lien for their charges. The marshal was thereupon instructed to return the goods to the warehouseman. /;; re American Sesuritv &" Trust Co., Ed. note, 25 W. L. R. 733. Storage charges — Void sale for — Compliance zvith statute es- sential: — A sale of chattels to satisfy charges of a warehouse- man must comply with the terms of the statute under which the sale is made. A failure to observe the statutory requirements in respect to notice makes the sale absolutely void and a purchaser takes no title to the chattels. Baum v. JVm. Knabe & Co., ZZ App. D. C. 237, 241. 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 — Cist of the action — Pleading: — In detinue the gist of the action is the wrongful detainer and not the original tak- ing. It lies against the person who has the actual possession of the chattel or who acquired it by any lawful means, such as bailment, delivery or finding; therefore, although a declaration in detinue alleges a bailment to the defendant, and his engage- ment 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 afterwards wrongfully withheld the goods. Wiard v. Semken, 2 App. D. C. 424. Same — No previous demand necessary: — In an action of deti- nue no proof of a previous demand is necessary, the serving 112 lUSTKU'T OV COLUMIMA DECISIONS. of a summons bcini; a surticiciU ilcmaiul. Marr v. Kubel, 4 Mack. }'77. M. Pledge — Pledge made by pledgee to one in good faith — Re- plevin: — The pledgee of goods in turn pledged them with an- other as security for the payment of a personal obligation with- out any notice that the goods were held as a pledge. The goods were returned to the original pledgee prior to suit brought. In an action of re])levin, brought for the recovery of the goods against the second pledgee, the court instructed the jury that if they Ijelieved that the defendant received the goods in good failli. 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 instruction was correct. Carpenter v. Starr, I Mack. 417. Same— Detinue — Pleading and practice — Confession and avoidance: — Plaintifif 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 plaintifif, in his replication, could properly state pay- ment of the debt in confession and avoidance, this not consti- tuting a variance. Further Jield, 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. IViard v. Seniken. 2 App. D. C. 424. R. Bill of lading — Exemptions in receipt given by expressman — Not valid as against negligence — -Rules stated: — If the receipt given by an expressman contains the expression that he is not liable 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 liabilities of the common carrier. A pro vision 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 he a reasonable and binding regulation. But no stipula- tion 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. FLORIDA LAWS. 113 CHAPTER X FLORIDA LAWS PERTAINING TO WAREHOUSEMEN Sale of goods under specified circumstances: — Warehouse- men 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 perish- able, that shall have been received l)y them and remaining on hand unclaimed for the space of not less than ninety days, but such sale shall, in no instance, take place without 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 the written notices posted in con- spicuous places near the place of sale. The owner or consignee 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. General Stats. Fla.. 1906. sec. 3127. Disposition of surplus: — .Xftcr all charges upon said goods and merchandise or other articles are paid, (not exceeding the ordinary mercantile charges for such locality) should there re- main a surplus, the same shall be placed in the county treasury subject to the claim of the owner of said goods, wares and mer- chandise, or other articles. After the lapse of one year from 8 114 FLORIDA LAWS. the time of placiiis; said surplus in tlie county treasury, should no person come forward to claim and receive the same, it shall he applied h\- the county commissioners of the county for the relief of the poor of such county. Id. sec. 3128. Warehousemen to give receipt: — Any warehouseman, wharlinger, timber and lumber inspector, or other bailee of like character, whether a natural person or a corporation, may be re- c[uired b}- any person from whom he or it shall receive personal property as such bailee, at the time it shall be so received, to give a receipt to such person for such property, describing the prop- erty and agreeing to deliver the same to the order of such de- positor upon return of such receipt. Such receipt shall be ne- gotiable by endorsement, which shall transfer to the endorsee the title, right of possessing and remedies of each prior endorsee. Such receipt may be deposited as collateral security. Provided, That nothing herein shall be construed as making any such bailee a w-arrantor of title. Id. Sec. 3129. When property is substituted: — If any property, or any part thereof, which has been or shall l)e delivered in accordance with the preceding section, and for which such receipt shall have been given and shall be outstanding, shall be removed from the place where it was subject to such receipt on storage or deposit, and other property of a like nature, grade, and quality shall be substituted therefor at such place, such substituted property shall be subject and answerable to such receipt, and the title, right of possession, interest and remedies which existed upon or under such receipts to, of and concerning the property origi- nally covered by such receipt shall apply to and continue to, of, in and concerning such substituted property as though it were the original property for which such receipt was given. If any property which is or shall be so on storage or deposit, shall be so mixed or mingled with other property of a like nature, grade and quantity that it can not be identified, a quantity of prop- erty for which such receipt shall have been given shall be sub- ject and answerable to such receipt and shall be delivered ac- cording to the terms thereof, and the title, right of possession, interest and remedies which existed upon or under such receipt to, of, in or concerning the property originally covered by such receipt shall apply to and continue to, of, in and concerning such quantity of such mingled or mixed property as though it were FLORIDA LAWS. 115 the original property for which such receipt was given; but nothing herein contained shall be construed to authorize such warehouseman, wharfinger, timber and lumber inspector, or such bailee who shall have given such receipt, so to remove, mix or mingle the property for which such receipt shall have been ffiven. but the obligation or liabilitv of such maker of such re- ceipt for the delivery of the property for which it shall have l:»een given according to its terms, and the title, right of posses- sion, interest and remedies of any person owning, holding or being interested in such receipt to, of, in or concerning the prop- ertv originally covered by such receipt shall continue until such receipt shall have been satisfied by delivery of property accepted bv the holder thereof. Jd. sec. 3130. Burning other buildings in the night time: — Whoever will- fully and maliciously burns in the night time a meeting-house, church, court-house, town-house, college, academy, 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. General Stats. Fla. 1906, sec. 3274. Same — Burning in day time :— Whoever willfully and ma- liciously 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. 327,S. 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 jierson 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 jiart thereof, without the consent of the owner or bailor and lo his injury, and with- out paying to him on demand the full value or market price there- of ; or if, after a sale of any of the said property with the con- sent of the owner or bailor, such person shall fraudulently and without consent aforesaid convert or embezzle the proceeds, ov 11*3 FLORIDA DECISIONS. any part thereof, to his own use and fail or refuse to pay the same over to the owner ov bailor on demand; and if any person iiorrows or hires property aforesaid and embezzles or fraudu- lently converts it or its proceeds, or any part thereof, to his owi5 use. he shall be punished as if he had been convicted of lar- ceny. Id. sec. 3308. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Lien under common laiv: — Under the common law the lien 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 inconsistent with the special agreement between llieni ; and is liable for any injury resulting from a departure from such instructions ; and this liability is incurred, although the services undertaken were gratuitous. Ferguson v. Porter, 3 Fla. 27. Same — 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. Mc- Lean, 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. IV est v. Blackshear, 20 Fla. 457. F. Carriers — When liable as zvarehousemen — Ordinary care:-- A car containing certain government stores was hauled into claimant's depot, and claimant's agent, finding no shipping in- structions accompanying the property applied to the proper gov- ernment officer for the same. The officer promised to send the bill of lading, and claimant not receiving same stored the prop- erty in a warehouse, where it was destroyed by fire. Held, That I I FLORIDA DECISIONS. 11? the liability of a common carrier in respect to goods begins when there has been a complete delivery and the goods are ready for shipment, that the claimant in the case of this property was a warehouseman, chargeable only with ordinary diligence and not a common carrier, and no negligence having been shown, it was not chargeable with the loss. Louisville & Nashville R. R. Co. V. U. 6-..\39 Ct. CI. 405. N. Negligence — Defined — Must he proved: — Negligence is the failure to observe for the protection of another's interests such care, precaution and vigilance as the circumstances justly demand and the want of which causes him injury. Negligence cannot be ])resumed but must be affirmatively shown. Jacksonville Street Railway Co. v. Chappcll. 21 Fla. 175; Bncki v. Cone, 25 Fla. 1. 118 GEORGIA LAWS. CHAPTER XI GEORGIA LAWS PERTAINING TO WAREHOUSEMEN Warehouseman: — A warehouseman is a depositary for hire, and is bound only for ordinary diligence ; a failure to deliver the goods on demand makes it incumbent on him to show the exer- cise of ordinary diligence. Code Ga., 1911, Vol. I, sec. 3503. Bonded Public Warehousemen: — 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 mer- chandise as hereinafter prescribed, upon their giving the bond hereinafter required. Id. sec. 2910. Bond to be given; the sureties: — Every person or corpora- tion desiring to become a bonded public warehouseman, un- der the authority granted by the preceding section, shall give bond to an amount based on the estimated value said warehouse- man 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 pub- lic warehouseman under the provisions of this section. 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 paragraphs 2554 to 2562, all of which paragraphs are applicable to bonds given under this section so far as they are pertinent. The clerk of the superior court shall fix the amount of the bond and approve the surety. Id. sec. 2911. Liability or principal and surety: — Whenever such bonded ]uil)lic warehouseman fails to perform his duty as such, or vie- GEORGIA LAWS. 119 lates any of the provisions of this law relating to bonded pub- lic warehousemen, any person injured by such failure or vio- lation may bring his action in a court of competent jurisdiction against the principal and sureties upon the bond of said ware- houseman. Id. sec. 2912. Insurance of property stored and receipts: — 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 placed in storage with him in his said bonded public warehouse, such insurance to be so taken out as to cover and protect said property from the time it is so stored with him. Every such warehouseman shall, except as hereinafter provided, give to each person depositing property with him for storage a receipt therefor, which shall be negoti- able in form, and shall rescribe the property, distinctly stating the brand or distinguishing marks upon it. and, if such prop- erty is grain, the quantity and inspected grade thereof. The re- ceipt shall also state the rate of charges for storing the property, the amount and rate of insurance thereon, and also the amount of the bond given to the clerk of the court, as hereinabove pro- vided : Provided, however, that every such warehouseman shall, upon 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, printed, or stamped on the face thereof : And provided, that no assignment of such non-negotiable receipt shall be efifec- tive until recorded on the books of the warehouseman issuing it: Provided further, that the non-negotiable receipt may sur- rendered at any time by the owner thereof, and a negotiable re- ccijit issued in lieu of the same. Id. sec. 2913. Title passes by transfer of receipt:— The title to cotton and other goods, wares, and merchandise stored in such bonded pub- lic warehouses shall pass to a purchaser or pledge thereof In the delivery to him of the said warehouseman's receipt there- for, with an endorsement thereon to such purchaser or pledge, signed by the person to whom such receipt was originally given by .said warehouseman or by the endorsee of such receipt. Id. sec. 2914. Mixed grain or other property: — When grain or other prop- erty is stored in such bonded public warehouses in such a man- 120 GEORGIA LAWS. nor that tliffercnt lots or parcels are mixed together, so that the idcutit}' thereof can not l)e accurately preserved, the ware- houseman's receii')t 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. 2915. Shall keep books open to inspection: — h^very such ware- houseman shall keep a hook in which shall be entered an account of all his transactions relating to warehousing, storing, and de- livering cotton, goods, wares, and merchandise, and to the is- suing of receipts therefor, which book shall be open to the inspec- tion of any person actually interested in the property to which such entries relate. Id. sec. 2916. Sale for overdue storage: — Every bonded public warehouse- man who shall have in his possession any property by virtue of any agreement or warehouse receii)t 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 pro- ceeds may retain all charges for storage on such goods, wares, and merchandise, and any advances that may have been made thereon by him on 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 m case of default in so doing, the goods, wares, and merchan- dise may be sold to pay the same at a time and place to be speci- fied in such notice. Id. sec. 2917. Notice, how served, or given: — The notice recjuired in the last preceding section shall be served by delivering to the per- son or persons in whose name such goods, wares, and merchan- dise were stored, or by leaving it at his usual place of abode, if within this state, at least thirty days before the time of such sale, and a return of the service shall be made by some officer author- ized to serve civil process, or by some other person with an affi- (la\it of the truth of the return. If the party storing such property can not with reasonable diligence be found within this state, then such notice shall be given by publication once in GEORGIA LAWS. ^^l each week for two successive weeks, the last publication to be at least ten days before the time of such sale, in a newspaper pub- lished 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. 2918. Proceeds of sale: — 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 sur- plus, if any, shall be paid over to such person or persons entitled thereto, on demand. Id. sec. 2919. Sale of perishable property :— Whenever a bonded public warehouseman has in his possession 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 notified the person in whose name the property was received to remove said property, but such person has re- fused or omitted to receive and take away such property and to pay the storage and proper charges thereon, said bonded 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 can not be found, on reasonable inquiry, the sale may be made without any notice, and the pro- ceeds of such sale, after deducting the amount of storage, ex- ])enses of sale, and other proper charges, shall be paid to the person entitled to the same. Id. sec. 2920. Unsalable property: — When a bonded public warehouse- man, under the provisions of the preceding section, has made a rea.sonable effort to sell perishable and worthless property, and has been unable to do so because of its being of little or no 122 GEORGIA LAWS. value, he may then proceed to dispose of such property in any lawful manner, and he shall not he liahlc in any way for prop- erty so disposed of. Id. sec. 2921. Storage, liability for: — When a bonded public warehouse- man, under the provisions of the two preceding sections, has sold or otherwise disposed of property, and the proceeds of such sale have not equaled 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 disposition, 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. 2922. Definition: — A bailment is a delivery of goods or property for the execution 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. Id. sec. 3467. Property in bailee: — In all cases the bailee, during the bail- ment, has a right to the possession of the property, and in most cases a special right of property in the thing bailed. For a vio- lation of these rights by any one he is entitled to his action. Id. sec. 3468. Burden of proof: — In all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper dili- gence. Id. sec. 3469. Care and diligence: — All bailees are required to exercise care and diligence in protecting and keeping safely the thing bailed. Different degrees of diligence are required according to the nature of the bailments. Id. sec. 3470. Ordinary: — Ordinary diligence is that care which every pru- dent man takes of his own property of a similar nature. The ab- sence of such diligence is termed ordinary neglect. Id. sec. 3471. GEORGIA LAWS. 123 Liens of pawnees, etc.: — Pawnees, factors, bailees and ac- ceptors shall have such liens as are in this Code designated. Such liens shall be inferior to liens for taxes, liens of which such persons had actual notice before becoming creditors, special liens for rent, liens of laborers, liens or mortgages duly recorded, judgment liens, and other general liens reduced to execution and levied. Id. sec. 3362. Deposits for hire : — Depositaries for hire are bound to exer- cise ordinary care and diligence, and are liable as in other cases of bailment for hire; they have a lien also for their hire, and may retain possession until it is paid. Id. sec. 3501. Bailee must show no concurring negligence: — In order for a carrier or other bailee to avail himself of the act of God or exception under the contract as an excuse, he must establish not only that the act of God or excepted fact ultimately occasioned the loss, but that his own negligence did not contribute thereto. Id. sec. 2713. In cases of bailments: — In cases of bailments, where the possession is in the bailee, a trespass committed during the exist- ence of the bailment will give a right of action to the bailee for the interference with his special property, and a concurrent right of action to the bailor for the interference with his general property. Id. sec. 4486. Effect of tender:— A valid tender of chattels transfers the title thereto to the person bound to receive ; and the possession of the promissor, if he retains possession from that time, is for benefit of the owner, but without liability to account for profits, or for more than ordinary prudence in their preservation and protection. Id. sec. 4325. Any bailee fraudulently converting the goods or proceeds :— If any factor, commission merchant, warehouse keeper, wharf- inger, wagoner, stage driver, or common carrier on land or water, or any other bailee, with whom any money or any other thing of value may be intrusted or deposited, shall fraudulently convert the same, or any part thereof, to his own use, or shall otherwise dispose of the same, or any part thereof, without the consent of the owner or bailor, and to his injury, and without paying to such owner or bailor, on demand, the full value or market price thereof, he shall be punished by imprisonment and 124 GEORGIA DECISIONS. labor in iho iKMiilcntiary for not less than two years nor longer than seven years. Code Ga., 1911, Vol. 2. sec. 189. Conversion of proceeds of sale: — If any bailee, with whom any money or other thing of \alue may be intrusted or depos- ited, shall, after a sale of any of said articles with the consent of the owner or bailor, fraudulently, and without the consent of the owner or bailor, convert the proceeds or any part thereof to his own use. and fail or refuse to pay the same over to such owner or bailor on demand, he shall be punished by imprisonment and labor in the penitentiary for not less than two years nor longer than se\en years. Id. sec. 190. Unlawrful disposition of deposited goods: — Whoever unlaw- fully sells, pledges, lends, or in any other way disposes of, or permits, or is a party to the unlawful selling, pledging, lend- ing, or other disposition of any goods, wares, merchandise, or thing deposited in a bonded public warehouse, withotit the au- thority of the party who deposited the same, or the lawful trans- feree or endorsee of the receipt given therefor, 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 with intent to injure or defraud any per- son to whom he so sells, pledges, lends, or in any other way dis- poses of same, or is a party to the unlawful selling, pledging, lending, or other unlawful disposition of any goods, wares, mer- chandise, article, or thing so deposited and receipted for by him. Id. sec. 701. 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 ful- filled and he is discharged although the property may be lost during his custody of it. Merchants Nat. Bank of Sa^mnnah v. Guilmartin, 88 Ga. 797. Same — Special deposit in bank — 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 GEORGIA DECISIONS. 125 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 position 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 whicli 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, be- yond his own interest, for the general owner. Schley v. Lyon & Rutherford, Trustees, 6 Ga. 530. Same — Trespass against bailed property — Rights of action: — In all cases of bailment, where the property is in possession of the bailee, and a trespass is committed during the continuance of the bailment, this gives the bailee a right of action for the in- terference with his special property, and a concurrent right to the owner or bailor, for the interference with his general prop- erty. Code. sees. 2141. 2191, 3030; Lockhart v. Western & At- lantic R. R. Co., 73 Ga. 472. Same — Tort may be zuaiz'ed and suit maintained on contract: — Where a bailee is rightfully in possession of property, and a tort arises out of a breach of the bailee's duty, the bailor may waive the tort and maintain assumpsit upon the contract. Ford & Co. v. Atlantic Compress Co., 75 S. E. 609. Same — Statute of limitations in case of — Mutual account: — Where a warehouseman and one of his customers maintained a mutual account which had been running for a period of over six years, it was /icld tiiat the statute of limitations did not begin ^2^ GEORGIA DECISIONS. to run until the last charge or item of the account. Flournoy & Epp'uui V. U'ootcii et al. 71 (;a. 168. Same — Coiiz'crsioii — When statute of liiiiitatioiis her/ins to run: — The statute of limitations begins to run when the l)ailee for hire liolds tlie goods adversely to tlic title oi the bailor; the possession immediately ceases to be adverse in consequence of the return of the bailee to his duty as such. Harrcl v. JVright et ai, H.vrs.. 57 Ga. 484; Blount, Admr., v. Beall, 95 Ga. 182. Evidence — Negligence — Question of hnu:— 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 — JVhen burden of proof on bailee: — In all cases of bail- ment, 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. Akernian et al., 110 Ga. 570; Concord Variety Works V. Beckham. 112 Ga. 242. B Warehouseman — Ordinary care — Duty of, defined: — A ware- houseman is only bound to exercise that degree of ordinary dili- gence in taking care of property stored with him which a pru- dent 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 ; Knight v. Wrightsville &- T. R. R. Co., 127 Ga. 204. Same — Collection of ginning charges — A^o^ idtra vires: — A cotton ginner verbally contracted with a cotton warehouse cor- poration to deliver to it all cotton ginned by him, and the com- pany agreed to collect for him the ginning charges when cus- tomers of the warehouse took their cotton out. Suit for amount due on cotton ginned and delivered to warehouse which the company had delivered to customers without collecting the charges. II eld : That under the evidence the contract was bene- ficial to both parties and was not unilateral, that the contract was not void as against the statute of frauds and was not ultra vires. Judgment for plaintiff afifirmed. Farmers Union Ware- house Co. V. Hollis, 69 S. E. ZZ. \ GEORGIA DECISIONS. 127 Same — Holds for owner: — Goods in the possession of a ware- houseman are legally in the possession of the owner. Szmft, Murphy & Co. v. McLemore, 48 Ga. 63 ; Zellner v. Mobley, 84 Ga. 746; Flournoy, Hatcher & Co. v. Wardlaw, 67 Ga. 378. Same — Prima facie case: — Where a bailment had been estab- lished, a refusal of delivery upon demand likewise shown, and the damage proven, the plaintiff had made his case and, uncon- tradicted, he was entitled to recover. Nail v. Farmers IVare- house Co. et al., 95 Ga. 770. Public zveigher — Not required fa zveigh cotton in all cases: — Where an ordinance provided "It shall be the duty of said pub- lic weigher in all cases of disagreement between seller and buyer to weigh all cotton and other produce sold by weight, when requested so to do, and give his certificate for the same ;" it was held this does not prohibit warehousemen from employing their own weighers and that it is only applicable in cases falling with- in the express terms of the ordinance. City of Dawson v. Thornton, 68 S. E. 73. Goods deposited by agent — Where personally liable for stor- age 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. On such a case, the warehouseman can hold the agent 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 warehouseman having presented his bill for charges to the agent and upon receiving a notification that the agent declines to ])ay, thereupon requests the attorney for the agent to forward the bill to the principal, this does not con- stitute such an election as will liold 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 warehouse- man, the original bailor denies having given the warehouseman power to sell, and claims the cotton as his own. Held, that the above farts are not such as to allow the warehouseman to Hie a bill of interpleader, compelling the original bailor and 128 CF.ORG I A DRCl SIGNS. tlie purcliascr [o litigate between themselves as to the title of the cotton. Tlic facts do not present a case in which an in- terpleader will lie, for the reast)n that, if the warehouseman acted without proper authority in the sale of the cotton, he is 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. Tyiis & Beall v. Rust, Survivor, d>7 Ga. 574. Landlord's debt — TciuiJit's cotton cannot be taken: — .\ land- lord, 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. IVardlaw, 67 Ga. 378. Sale of goods ivhile in zvarehouse — Best evidence: — Where goods have been sold while deposited in a warehouse and the purchaser thereof claims that the warehouse receipt was duly as- signed to him, in an action, by said purchaser, against the ware- iiouseman 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 zvhen instructed to sell for cash onlv, 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. Same — Refusal to deliver — Tender of charges unnecessary: — When the holder of a warehouse receipt makes demand upon a warehouseman for the property and the warehouseman states that the holder has no property in the warehouse ; this is not only a refusal to deliver but an admission of conversion, because if the property was placed in the warehouse, as evidenced by the receipt, and the bailee could not account for it, this would amount to a conversion. When the warehouseman told plaintifif he had no cotton there, thus not only refusing delivery, but also de- GEORGIA DECISIONS. 129 nying his right to make a demand, no further necessity for pre- sentation of the receipt or ofifer to pay charges remained. Light- sey V. Lcc. 8 Ga. App. 762. Same — Delivery to one not owner constitutes: — The delivery of stored cotton to one not holding the warehouse receipt issued for the same and one whom the defendant knew not to be the own- er of the cotton constitutes conversion. Trippe v. Bell & Co., 78 S. E. 126. Same — Elements of: — If the fact be that a defendant came into possession of warehouse receipts without the knowledge or consent of the owner, presented them at the warehouse, received the goods and disposed of the same without the authority of the owner, he is guilty of conversion, no matter how innocently he may have acted from a moral standpoint. Farmers' and Mer- chants' Bank v. Bennett, 120 Ga. 1012. Taxable debt — Right to goods stored does not become such until demand and refusal: — Defendants had undertaken, by con- tract, to keep safely and deliver to the plaintiff on demand two bales of cotton. Two years elapsed before demand made; held, that under the provisions 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 de- manded the cotton of the defendant and had met with a refusal to deliver. Daivson v. Ivy & Garrard, 45 Ga. 22. Contract of leasee of ivarehouse acting in capacity of agent and in individual capacity — Individually liable to depositors: — Where in an action against several persons, doing business as warehouse- men, the evidence showed that the plaintiff deposited 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 individually. The con- tract 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 proved his damages. After such a showing the court granted a nonsuit. Tt was held that the plaintiff had estab- li.shed a prima facie case, that as the evidence was uncontra- dicted he was entitled to judgment. Therefore, the judgment of the couri below was reversed. Nail v. Farmers' Warehouse Co. ct al.. 95 Ga. 770. 130 GEORGIA DECISIONS. Jh'lk'cry — U'roiu/fitl zclicii' iiiadr to the oiciicr's broker in the absence of express authority: — In an action against a railroad company, liable as a warehouseman, it appeared that it had tendered the goods to the consignee, wht^ had refused to receive tendered the goods to the consignee, who had refused to receive them. The carrier's defense was that it had delivered the goods, pursuant to instructions 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 directions of consignee's brokers in case of refusal to re- ceive goods. It was held that the defendant had violated its duty to the consignor in delivering the goods pursuant to in- structions received from the plaintiff's iM-oker, that the evidence failed to show any lawful excuse or justification for such de- livery, and that ordinary 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 Refining Co. v. McGhee, 96 Ga. 27. Insufficient shoiving for appointment of Receiver for zvare- houseman: — There being no allegation that the defendant was insolvent, or had been guilty of any breach of duty relative to funds in its hands obtained from fire insurance and from the sale of goods damaged past identification, or that it had ceased to exercise its franchise or conduct its business, or that there was danger of loss of the property, the petition did not allege grounds sufficient for the granting of an inujnction or the appointment of a receiver. Farmers' Ginnery & Mfg. Co. v. Thrasher, 79 S. E. 474. E. factors — Alust act strictly within oivners' instructions — Local custom cannot change lazv: — The plaintiffs, factors and cotton brokers, brought an action against the defendants on a promis- sory 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 instructions to sell the same and to apply the pro- ceeds thereof to the payment of the note sued on. And, fur- ther, that the sale had been made but not pursuant to the instruc- GEORGIA DECISIONS. 131 tions of the defendant, 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 plain- tiffs 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 dtity of the factor to strictly comply with the instructions of his prin- cipal 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 plaintiff's 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 plaintiffs could not recover thereon. Hatcher & Baldivin V. Comer & Co., 7Z Ga. 418. . Same — 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 tlie 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 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 al., 105 Ga. 72. Same — Pledge by: — Where a factor, who was also a ware- houseman and commission 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 i-oZ GEORGIA DECISIONS. liini. it was held that tlio hank, as i)ledgee, acquired no title as against a subsequent purchaser of the cotton who bought in good faith from the factor. National Exchaugc Bank v. Graniteville Mfg. Co., 79 Ga. 22. H. Storage charges: — A warehouseman is not obHged to deliver goods until his storage charges are paid. Tyiis v. Rust, 43 Ga. 529; Dixon v. Central Ry. Co., 110 Ga. 173. Same — Evidence: — Suit upon breach of contract for damages to apples while in cold storage. The evidence was sharply con- flicting and jur}^ found for defendant. Some evidence tended to show that the employees of defendant in the presence of plaintifT were told to be governed by the instructions of plaintiff as to the temperature of the room containing the property. Held, that the evidence was admissible as to the terms of the contract against all the joint plaintiffs, and did not amount to self-serving declarations. McCtdlough Bros. v. Satvtell, 68 S. E. 89. Same — Cannot he changed by notice exhibited in zva rehouse 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 w^arehouseman 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 w^arehousemen 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 rate prevailing at the time of storage. Gannany v. Rust, 35 Ga. 108. Same — Special contract governs, when — Lien: — Plaintiff de- posited certain cotton with defendants, taking warehouse receipts, upon an alleged express agreement regarding notice of the sale of the cotton. Held, that if defendant was entrusted with the possession, control and disposition of the cotton, for a commis- sion, for the benefit of plaintiff, then defendant had a lien for all advances and expenses, and in the absence of a special con- tract could sell the cotton in accordance with the usage of trade. GEORGIA DECISIONS. 133 That if there was a special contract then it would govern, though contrary to the general rule. IVhigham v. Fountain, 132 Ga. 277. IVareJwuscnian's lien — Superior to claim for advances and charges: — Where it appeared that a warehouseman received cotton in his warehouse without notice of any lien or charge against the same, and it subsequently appeared that the cotton was produced 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, Dobbins, 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 lawful charges for storage, the bailor is personally liable therefor. Garrard, Execu- tor, V. Moody, 48 Ga. 96. Factor's lien — Possession: — Possession of the property is necessary to create the factor's lien, but the possession may be actual or constructive. Kollock v. Jackson, 5 Ga. 153. Same— Judgment paramount: — Judgments bind all the prop- erty owned by the defendant, from their date, as well that subse- quently acquired as that owned at the time of signing the judg- ment; and the lien of judgments has precedence over, and is para- mount to the lien of a factor upon property in his possession. Id. Same — Sam e — Principal an d 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 for cash, or the securities for which they were sold, if sold for credit, to secure to him such expenses, disburse- ments, 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 expendi- tures, and when himself sued by his principal, he may set them up in reduction of the plaintiff's demand, without pleading them as a set-off. Rut the liability of the principal goes upon the 1S4 GKOKC^IA DECISIONS. ^s;rouiul that tliov were made and ineuired in good faith, reason- ably and withont any default, (in the jvirt oi the factor. Brozvn, Shipley t'r Co. V. ilayton. 12 Ga. 564. K. Ganiishiiiciit of goods zvhilc in warcJwusc — Delivery of goods after serz'iee of siinnnons — WarcJiouseynan 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 receipt, and is subse- cjuently served wath summons of garnishment by a creditor of A, held, that he is not relieved from liability, 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. Trover — Actual conversion must be shoivn — 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 statement 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 w^ere 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 another 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 authority. Trover wull not lie in such case but the proper remedy of the plaintiff should have been an action on the case for violation of instruc- tions or breach of contract. Loveless v. Foivler, 79 Ga. 134 Same — Pledgee of xvarehouse receipt may maintain trover: — Where one holds a warehouse receipt as pledgee and a 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- GEORGIA DECISIONS. 135 chaser for value of the receipt. Citizens Banking Co. v. Pea- cock & Can-, 103 Ga. 171. M. Pledge — Delivery by warehouse receipt: — The delivery of a warehouse receipt, being the symbolical delivery of the property represented thereby, is sufficient to create a valid pledge of the property. Citizens Banking Co. v. Peacock & Carr, 103 Ga. 171. Warehouseman's hooks — Best evidence as to iveight 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 & Shackel- ford V. Hartridge & Hartridge, Admrs., 28 Ga. 272. N. Loss by fire — IVarehouseman not responsible: — A warehouse- man is not responsible for goods destroyed by fire unless negli- gence be shown upon his part. Brunswick Grocery Co. v. Bruns- wick & Western R. R. Co., 6 Ga. 270. Negligence — Duty to protect property — Burden of proof: — A railroad company demanding storage charges for warehousing goods is a bailee for hire, and proof of the loss of the goods places upon it the burden of showing that it had exercised ordi- nary care and diligence in protecting them. Negligence may consist in the bailee having left the property unguarded, where it would be exposed to a danger from fire which an ordinarily prudent jjerson would have anticipated under all the circum- stances. Netzow Mfg. Co. v. Southern Ry. Co., 66 S. E. 399. Same — Evidence: — Property on storage in warehouse located between the tracks of defendant's railway and another railway company, the warehouse being managed l)y defendant railway company, was destroyed by fire communicated to the warehouse, and originating in a quantity of cotton stored on the platform of the warehouse. This platform had neither sides nor overhead covering. Held, that proof that other fires had recently origi- nated in the cotton on the platform was a circumstance which plaintiff might properly present to the jury in connection with other facts, and that the jury might determine whether the de- fendant's cautionary activities had fulfilled the required measure of ordinary care anrl diligence. Netzow Mfg. Co. v. Southern R\. Co., 66 S. E. 399. 136 GEORGIA DECISIONS. Act of war — A'Ot trespass: — Where an officer in the Con- federate 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 fur- ther, that a clerk of the warehouseman who received such prop- erty, after its removal and placed the same in his employer's warehouse, was not liable for the conversion thereof. Stafford V. Mercer, 42 Ga. 556. Sa)nc — Charges to jury — Ordinary care — Measure of dam- ayes: — Where cotton was thrown out of defendant's warehouse bv 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 there- of, if he could do so by the exercise of ordinary care and pru- dence ; the court should have further charged that if it appeared 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 warehouseman 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. Cunningham v. Franklin, Read & Co., 48 Ga. 531. M. Negligence — Instruction to fury — Pleading and evidence: — In an action for damage to fruit caused by alleged negligence of the warehouseman, plaintiff is not entitled to have the jury in- structed so as to give him the benefit of a theory of recovery which he did not plead or undertake to prove. Western & At- lantic R. R. Co. V. Branan, 123 Ga. 692, 695. Measure of damages — Interest allowed from date of demand: — Where a warehouseman was sued for the conversion of cotton GEORGIA DECISIONS. ^^^ deposited with him and it was alleged that he failed to redeliver 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 principal and interest together would be the amount of damages. Held, that this was a proper charge. Garrard v. Dawson, 49 Ga. 434. P. Insurance — Cost of removing debris — Equitable lien — Bailor's right of removal: — 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 quantity of the rice ruined. Representatives of the insur- ance companies, without permission from the warehouseman, re- moved 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 rice 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 disbursements in such a case. The court further held that a depositor had, at all times the right to go upon the premises of the warehouse- man to remove his pro])erty therefrom, and that if the property was partially injured that the owner would have a right to re- move 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 removing such useless property, the ex- pense must be borne by him as it is one of the incidents of the business of warehousemen. Savannah Steam Rice Mill Co. v. /lull. 103 Ga. 831. Same — Contract to keep insured in customer's name: — The plaintiff brought an- action against the defendant warehouse- man, alleging tlial lie had stored a large quantity of cotton in the 138 GEORGIA DECISIONS. warehouse of the latter, and that under a contract between 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 on the several bales. After several months the plaintiff removed 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 subsequently came to the knowledge of the plaintiff that the warehouseman 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 de- fendant. 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 defendant had failed to comply with his contract with the plaintiff. 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 amendment 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 contract. On motion of the defendant at the trial, that part of the declaration in re- gard 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 although these words might be mis- leading and productive of damage, they were not sufficient to con- stitute 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. GEORGIA DECISIONS. ^^^ Same — Same — Statement in receipt: — Action for value of cotton. The warehouse receipt contained the following clause : "All cotton stored with us is fully insured. Acts of Providence excepted." On motion, the court struck out all the averments of the petition seeking to charge the defendants with liability on account of the statement in the warehouse receipt. Held no error on authority of Zora v. Hannah, 106 Ga. 61. Plaintiff sought to amend his petition, first, by alleging a conversation, which, together with the statement in the warehouse receipt, left him under the impression his cotton was to l)e insured by de- fendant; that the said statement in the receipt was false and fraudulent and intended to deceive and did deceive him to his injury; second, by alleging that the conversation and statement in the receipt constituted an express contract to insure. The amendments were properly disallowed, as they sought to set up new and distinct causes of action and that it was by no means clear that the facts alleged in either amendment constituted a cause of action. Atwater v. Hannah & Co., 116 Ga. 745. Same — Right to proceeds — Where some goods insured and others not — Where identification impossible: — If the warehouse- man insures goods for his customers, and collects money for their loss, he holds such funds for the lienefit of the insured cus- tomers. If at the time of the fire some of the goods are insured and some are not and some of the goods are so damaged they cannot be identified and if when in such condition they are sold by the warehouseman the fund thus derived will be held by the warehouseman for the benefit of all the owners of the goods whether they be included among the insured or uninsured class. Farmers" Ginnery & Mfg. Co. v. Thrasher, 79 S. E. 474. Same — Same — ■ Same — Suit in equity — • Multifariousness — Parties plaintiff: — Where two funds were raised in the manner indicated above but were insufficient to cover ihe losses of all the parties in interest, and equitable suit at the instance of a number of the customers, of whom there were a large number, suing in behalf of themselves and others similarly situated, against the warehouseman for an accounting, was not subject to demurrer on the ground that it was multifarious, or that there was a misjoinder of ])arties plaintiff. Id. Same— Same— Same— Pleading:— In a suit of the character above stated it appeared from the allegations of the petition that ^■^^ GEORGIA DECISIONS. the duly to insure eovered a period only of 30 days, l)eginning on the tlate of the storage of the goods, Jicld, it was erroneous to overrule a special demurrer complaining that the petition failed to allege the se\eral dates upon which the goods were stored. Id. Same — Same — WJicti warcJiousc receipts not relied upon need not he set forth in petition — Pleading: — In the case above de- scribed where the case was not founded upon the receipts, the petition is not demurrable because it failed to set forth the receipt in form or substance. Id. Same — Parol contract to obtain — Name of agent of corpora- tion making, need not be alleged: — In such an action against a corporation based upon an alleged parol contract to procure in- surance on the stored goods, the petition was not subject to spe- cial demurrer upon the ground that it failed to allege the name of the agent of the corporation who made the contract. Id. Same — Evidence of custom: — Evidence that it was the custom of those depositing goods in warehouses to insure them was properly received. Hamilton & Co. v. Moore, 94 Ga. 707. Q. Same — Custom for zvarehonsemen to insure — Liable for fail- ure: — Where it was shown a universal custom obtained for ware- housemen to procure insurance against fire for cotton stored with them a failure to so insure renders a warehouseman liable in case of destruction by fire. This is true even though the ware- house receipt contain the provision "Acts of fire and Providence excepted." Being a receipt it is subject to explanation by parol evidence. Rochelle Gin & Cotton Co. v. Fisher, 79 S. E. 584; see also, Faryners' Ginnery & Mfg. Co. v. Thrasher, 79 S. E. 474. Warehouse Receipts — Advances must be stated on: — It is the duty of a warehouseman when he issues a receipt, if he has made an advance to the owner of the goods, to so state in the body of the receipt. If he subsequently makes an advance he should re- quire the production of the receipt and enter thereon a state- ment of the advance. If advances have been made it should specifically appear upon the receipt, if not so stated the pledgee is protected. After the pledgee obtains possession his title can- not be encumbered by any act of the warehouseman or pledgor. The words "customary charges and all advances" held not suffi- cient as notice. Bank of Sparta v. Butts, 61 S. E. 298, 300. GEORGIA DECISIONS. 141 Same — Negotiability: — The transfer and delivery of a ware- house receipt is equivalent to the delivery of the property itself. Citi:::ens Banking Co. v. Peacock & Carr, 103 Ga. 171 ; Gibson v. Stern, 8 How. ( U. S.) 383. Same — Delivery passes title to the property — IV arehouseman' s duty to deliver: — Warehouse receipts are mere symbols of the property itself and a delivery of the receipt is equivalent to con- structive delivery of the property described in the receipts, and requires the warehousemen upon their presentation and pay- ment of storage charges and advances, if any, to make actual delivery to whoever might hold them. Lightsey v. Lee, 8 Ga. App. 762. Same — Case zvliere bailor protected zvlien zvarehonse receipt fraudulently negotiated: — Where the owner of goods delivers them to his agent to deposit 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 con- tracted with a manufacturer, who was also conducting a ware- house, that the latter should manufacture certain articles of commerce, and, when completed, that the goods should be stored in the warehouse belonging to the manufacturer. It was the custom between them that when the goods were stored the pur- chaser 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 occa- sion 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 withdrawn the goods, a receiver was appointed for the manufacturer who took possession of the goods repre- senterl by this receipt, which goods were found in the factory and not in the warehouse. At the tri.il the court adjudged that no title had passed by the transfer of this receipt to the plaintiff and that, therefore, he was not entitled lo recover. The case was reversed on appeal holding that the essentials of a valid sale 142 GEORGIA DECISIONS. had been ct>nii)liecl with and the title had been passed to the plain- titT. I'hat tlie issuing and transferring of a warehouse receipt was a well recognized and common mode of effecting delivery, and. in this case, was undoubtedly intended to operate as such. }ia\ing received the price of the goods, the manufacturer would be estopped from denying the fact of delivery to his warehouse. Slicpard cr Co. v. King, 96 Ga. 81. SiDne — Effect of transfer: — The transfer of warehouse re- ceipts and other similar paper, symbolic of property, operates to transfer the title to the property when it is so intended ; but it gives the holder of the receipt no higher rights than if tiie prop- erty itself had been physically transferred, sold or delivered. Booze V. Ned, 64 S. E. 1104. 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, l^y the executor, for the recovery of the goods repre- sented by the receipt, parol evidence will be received, which will explain that such indorsement was not for the purpose of pass- ing the title to the goods but simply to enable the assignee to act as agent for the indorser to obtain the cotton represented by the receipt. Lowery v. Davidson. 44 Ga. 38. Same — Pledge proves title: — When warehouse receipts for cotton or other goods are delivered in pledge as collateral se- curity for the payment of a debt, the legal effect of such deliv- ery is to put the legal title to the property pledged and described in such receipt in the pledgee. The title to property represented becomes vested in the bona fide pledgee for value, and this title cannot be defeated or encumbered by any act of the warehouse- man or pledgor. The pledgee has not only a lien for his advance on the property represented, but an absolute title indefeasible ex- cept by payment of the debt. Bank of Sparta v. Butts, 61 S. E. 298. Same — Collateral security — Without 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 prop- erty passed to the pledgee by such symbolical delivery. Under the code in force in tlie state of Georgia, a pledgee of such a re- GEORGIA DECISIONS. 143 ceipt is such a bona fide holder of the property as will be pro- tected under the same circumstances as a purchaser. Further, that if the parties so intend, the delivery of a warehouse receipt without indorsement, as collateral security, transfers both title and possession to the property represented by the receipt. Where the warehouseman claims that the pledgee has received the pro- ceeds 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 property. Citizens Banking Co. v. Peacock & Carr, 103 Ga. 171. Same — Pledge — Must have possession of goods: — In order to constitute a valid pledge of property to secure a debt, there must be a delivery, either actual or constructive, of the property to the intended pledgee. Consequently, the delivery, as collateral security for a promissory note, of a paper purporting to be a wharfinger's receipt for the property therein described conveys to the intended pledgee no interest whatever in such property, when the same is not in the possession of the wharfinger or the party who undertakes to pledge it. Commercial Bank of Jacksoji- ville V. Flozvers, 116 Ga. 219. Same — Property not actually in store — Authority of super- intendent to issue — Bona fide holder: — The superintendent of the defendant warehouse company issued negotiable warehouse re- ceipts, 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 receipts and bills of lading 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 re- ceipts of a special form and character "be adopted and issued in due course of business, for the express purpose of being pledged as security to obtain money, and if, as a part of the regular sys- tem of using them, the warehouseman acknowledged in writing on each receipt notice of assignment by the i)ledgor to the pledgee before the latter advances his money thereon, the ])ledgee, after advancing 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 recital in the s])ccial receipt being utterly false, nevertheless the recital will have the ';amc effect in j)rotccting such bona fide pledgee as l***^ nRORGIA DECISIONS. 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 syml)ol 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. Olmstcad & Co., 78 Ga. 586. Same — Same — Plcdycd by zcarehouseman as factor to secure personal loan — Bona 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 against an innocent pur- chaser of the cotton itself. National Exchange Bank v. Granite- ville Mfg. Co., 79 Ga. 22; Western & A. R. R. Co. v. Ohio Val- ley B. & T. Co., 107 Ga. 512. Same — Satne—To secure note at usurious rate — Title of such pledgee good as against tvarehouseman: — 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 demand made by the plaintiff and a re- fusal to deliver by the defendant warehouseman. On motion of the defendant the plaintiff was nonsuited. It was held on ap- peal that the defendant warehouseman, who was a stranger to the usurious transaction, could not set up usury as a defense in the action for the recovery of the property. Zellner v. Mobley, 84 Ga. 746. Same — Refusal to deliver goods unless receipt surrendered — Not conversion: — In an action, brought by the assignee of a ware- house receipt, against the warehouseman for conversion of the goods, conversion 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 indemnifying him against misdelivery. Patten v. Baggs, 43 Ga. 167. GEORGIA DECISIONS. 145 Same — Worthless receipt — Purchaser may recover from sell- er: — Plaintiff purchased from defendant a warehouse receipt representing certain cotton. Prior thereto, but unknown to both parties, the cotton represented had been delivered to another party on presentation of a duplicate receipt. The warehouse- man refused to deliver the cotton, and the holder of the receipt brings his suit for the amount paid against the party from whom he purchased the receipt. Held, that plaintiff is not limited to his action against the warehouseman, but is entitled to rescind the contract, tender back the receipt, and recover from defend- ant the amount of the purchase price. Livingston v. Anderson, 58 S. E. 505. 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 receipts had been lost or destroyed ; upon demurrer to such bill it was held that the court. had jurisdiction to compel defendants to deliver the goods and that the demurrer was properly overruled, the more es- pecially since it appeared that, if the bill had been dismissed for want of jurisdiction, the complainant's remedy, in the com- mon-law courts, might have been barred by the statutes of limi- tations. 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 rep- resented by warehouse receipts, the receipt itself is the best evi- dence of title. Further, that where a warehouseman declined to surrender property, which he had stored, to one who repre- sented himself as the owner thereof, stating to such third per- son 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 (bird person as his bailor. Tt was at the most that the third person seemed to be the owner but that his title was defective. Patten v. Ra(/(/s, 43 Ga. 167. Same — "Acts of fire and Providence excepted" in receipt will not relieve zvarehouseman where universal custom of zvarehonse- men to insure against fire — Parol evidence: — In an action against 10 HG GEORGIA DECISIONS. a warehouseman to recover the value of cotton destroyed by fire it was held that the stipulation in the warehouse receipt that the cotton was "subject to the presentation of this receipt only, the paying of customary expenses and advances, acts of fire autl Providence excepted" was subject to explanation ancl was controlled by the proof of a custom universally recognized in the locality, and which consequently became a part of the con- tract, by virtue of which the defendant warehouseman under- took to insure all cotton deposited in its warehouse and upon its failure to so insure and the destruction of the cotton by fire the defendant became liable for the value thereof. That the ware- house receipt, as a receipt, was subject to explanation by parol evidence. Rochellc Gin & Cotton Co. v. Fisher, 79 S. E. 584; see also, Farmers' Ginnery & Mfg. Co. v. Thrasher, 79 S. E. 474. Same— Subject of larceny: — A warehouse receipt representing a ])ale of cotton, showing on its face a deposit of the cotton and itlentifying the cotton, given by the warehouseman, to the owner of the cotton, is property and is a subject matter of larceny. Curric V. State, 59 S. E. 926. R. Bill of lading — Delivery by carrier of the goods represented ivithoiit return of the bill of lading: — A common carrier, which had issued a bill of lading for a quantity of flour intrusted to it for shipment, subsequently delivered the flour without pro- curing the return of the bill of lading. It appeared that the con- signor 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 Sav- ing Bank V. Western & Atlantic R. R. Co., (SI 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 plaintifif sold a carload of shingles to a purchaser and instructed the railroad company not to deliver the same without production of the bill of lading. After the shipment was made, plaintifif learned that the defend- ant railroad company had, contrary to the terms of its agree- ment, delivered the shingles to the purchaser without requiring the surrender of the bill of lading. The plaintifif thereupon drew his draft at thirty days, and although such draft was not paid. GEORGIA DECISIONS. 147 it was held, in an action against the carrier, that the plaintiff had waived his right as to the surrender of the biU of lading on de- livery by the drawing of the draft, this being equivalent to the acceptance of a thirty days' credit; further, that the title to the shingles had passed to the purchaser. Southern Ry. Co. v. Kin- chen & Co., 103 Ga. 186. Same — Exemptions in — Contrary to code — Effect of accept- ance: — The defendant carrier had issued a bill of lading which contained provisions that it would not be responsible for the loss or damage to ffoods incurred when on other and connecting lines or railroad, and that in no case would it be liable for damage unless a written demand be made therefor within ten days after (leli\er\- of the 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 lad- ing does not establish the shipper's assent to stipulations of this kind. Central R. R. Co. v. Hasselkus & Steivart, 91 Ga. 382. Same — Indorsement thereon by agent as to condition of the goods zvhen received not ad)nissible 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 admissible in evidence unless it be further shown that it was the duty of this agent to investi- gate the condition in wiiich 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 there- on. Haas V. Kau.'^as City. P. S. c'r' G. R. R. Co., 81 Ga. 792. Same — Same — Effect: — An indorsement on a bill of lading by the consignor, to a third person, in effect makes such third person the consignee. Cliirago Packing & Provision Co. v. The Railroad. 103 On. 140. Same — Not a "negotiable instrument:" — Although a bill of larling be indorsed and transferred it is not such a negotiable instrument as will give the assignee any greater rights than th; assignor had. /(/. 148 GEORGIA DECISIONS. Same — Same — Stands for the property it represents: — Under the common law, bills of lading are not, properly speaking, negoti- able instrmnents. The mere possession of liills of lading, in an ap- parently regular state and under circumstances apparently hon- est, does not always enable the holder to negotiate with full protection to a bona fide purchaser. If they are stolen or pro- cured 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. Howard, S7 Ga. 410; Raleigh & Gaston R. R. Co. ct al. V. Loivc, 101 Ga. 320. Bills of lading — Notice necessary to defeat: — Owing to the importance of bills of lading and similar instruments in the com- mercial 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 evidence of such notice ; further, that mere presumption would not suffice. Boatmen's Savings Bank V. Western & Atlantic R. R. Co., 81 Ga. 221. Same — Parol evidence not receivable to shozv 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 such contract that the goods would be delivered within a reasonable time and that parol evidence would not be received to show that it was the understanding of the parties that the goods 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 & Stezvart. 91 Ga. 382; Richmond & Danville R. R. Co. V. Shomo, 90 Ga. 496, distinguishing Pnrccll v. Southern E.v. Co., 34 Ga. 315. See also McElveen & Hardage v. Southern Rx. Co.. 109 Ga. 249. S. Custom — When universal, becomes part of storage contract, although contrary to terms of receipt: — Where it was shown the custom of warehousemen to insure stored cotton was universal in the localitv. it was lield. the warehouseman was liable for the GEORGIA DECISIONS. 149 value of burned cotton where he failed to insure. A stipula- tion in the warehouse receipt "Acts of fire and Providence ex- cepted" was held to be controlled by the aforesaid custom. Rochelle Gin & Cotton Co. v. Fisher, 79 S. E. 584. T. Larcenx b\ employee — Employee not in possession as bailee — Not larceny after a trust: — \\'here the employee of a warehouse- man stole cotton from him, it was held (the value of the cot- ton being found to be less than fifty dollars) that the crime com- mited was one of larceny; that the property was in the pos- session of the warehouseman and not of the defendant, and, therefore, that no trust was reposed in the defendant from which such a fraudulent conversion could be shown as would subject him to indictment for larceny after a trust. JVall v. State of Georgia, 75 Ga. 474. U. Taxation — State may classify occupations and tax same: — A state has the right to classify occupations and to place diflferent taxes upon different occupations. The necessity for such tax, upon what occupation it shall be imposed, and the amount are exclusively within the control of the legislature. So long as there is no discrimination against citizens of other states, the amount and necessity of the tax is not open to criticism by the courts. A tax upon "all agents of packing houses doing business in this state" held valid. Kehrcr v. Stewart, 197 U. S. 60, 69, 70; affirming 115 Ga. 184. 150 IDATTO LAWS. CHAPTER XII IDAHO LAWS PERTAINING TO WAREHOUSEMEN The State Grain Commission consists of three (3) qualified electors of the state of Idaho, who are appointed by the gover- nor to hold office for two (2) years and until their successors are appointed and qualified, unless sooner removed by the gov- ernor. The commissioners shall be appointed each odd-numbered year. Said commissioners shall take the oath of office required of otiier state officers. Two members of said commission shall be farmers actually engaged in the business of farming, and not engaged in the warehouse business at the time of their appoint- ment, and shall be selected from different sections of the state. The decisions of a majority of the commissioners shall be deemed the decision of the commission on all questions arising for their consideration. Revised Codes, Idaho, 1908, sec. 1478. as amended by Act March 5, 1909. Sess. laws, 1909. p. 28. The board shall select one of its members as chairman of said commission, and before the first day of July of each year said commission shall be called together by the chairman at some place within the state, and shall then and there establish standard grades of all hay and grain bought or handled by any pul:)lic warehouse within the state which shall be known as the "Idaho Grade." The said commission shall exercise general supervision over the hay and grain interests of the state, and of the handling, inspection, weighing and storage of hay and grain, and of the management of ])ublic warehouses, shall investigate all complaints or fraud or injustice in the hay and grain trade, and may fix the charges of public warehousemen. The said commission shall also estal)lish the necessary rules and regulations for grading and weighing hay and grain, and shall fix the charges for inspecting and grading hay and grain, and shall make such other rules and regulations as may be neces- sary for the enforcing of the rules and regulations of this chap- IDAHO LAWS. 151 ter or any law of this state in regard to the same. Revised Codes, Idaho, 1908, sec. 1479, as amended by Act March 5, 1909. Sess. laws, 1909, pp. 28, 29. For the purpose of maintaining the grades of wheat in this state, it shall be the duty of the chairman to procure from every part of the state of Idaho, each season, as soon as it can be done after harvest, samples of the crop of grains, and after col- lecting such samples of grain he shall call a meeting of the State Grain Commission, and they shall make up and establish from said samples the said grade, which shall be a fair average mix- lure of all the varieties of grain in the different sections of the state. If the said State Grain Commission deems it expedient they may. in making up and establishing the said grade, meet and confer with like grain authorities in the states of Oregon and W'ashington. or, in case there are no such authorities in the states of Oregon and Washington, then with the representatives of the leading handlers of grain in the cities of Portland, Oregon. and Tacoma, ^^'ashington, and make up and establish the same fair average quality, which shall be maintained in this state. This section shall not l)e so construed as to interfere with the stan- dard grades of grain elsewhere provided for in this chapter. Re- vised Codes, Idaho. 1908, sec. 1480. That said standard grades, charges, rules and regulations so made and established shall be published in three (3) newspapers. printed and i)ul)lished in different sections of the state of Idaho, for a period of two (2) weeks, beginning immediately after they are made or established, and it shall be the duty of every ware- houseman within this state to apply to and receive of the chair- man a placard copy of said standard grades, charges, rules and regulations, which he shall keep posted in a conspicuous place in his office and which the chairman shall furnish free of cost. Said commission may modify such grades, rules and regulations or establish new ones, and such changes shall be advertised as re- quired for the original. Revised Codes, Idaho, 1908, sec. 1481, as amended by Act March 5, 1909. Sess. Laws, 1909. p. 29. It shall be the duty of the commission to furnish any elevator or warehou.se in this state or adjoining states, standard samples of grain as established by the State Grain Commission when re- quested to do so by the proprietor, lessee or manager thereof, at the actual cost of such sample. It shall be the duty of the com- irvj IDAHO LAWS. mission to advertise the cost to the warehousemen of the said standard samples of grain, at the time the said standard grades, charges, rules and regulations are advertised as herein provided. Revised Codes. Idaho, l^OS. sec. 14S2. Such commission shall appoint a state hay and grain in- spector, whose term of office shall he ior two (2) years, and un- less sooner revoked by the commission. Such inspector shall give a bond to the state in the sum of ten thousand dollars ($10,000), with sureties to be approved by the commission, conditioned for the faithful and impartial discharge of the duties of his oftice according to the law and rules and regulations i)rescribed by the commission and the payment of all damages sustained by any person caused by his failure to perform such duties. lie shall be paid a salary of one thousand five hundred dollars ($1,500) per annum, payable quarterly, and his actual, necessary expenses while away from his place of residence on business for the State Grain Commission. He shall file with said commission du- plicate vouchers of all such expense duly verified by him. Revised Codes, Idaho, 1908, sec. 1482a, as added by Act March 5, 1909, Sess. laws, 1909, p. 30. Upon written complaint filed with the commission charging the state hay and grain inspector with official misconduct, in- efficiency, incompetency or neglect of duty, the commission shall investigate such charge, and if it be sustained, shall remove such officer. Revised Codes, Idaho, 1908, sec. 1482b, as added by Act March 5, 1909. Sess. laws, 1909. pp. 30-31. All elevators and warehouses in which hay, grain, wool or other product is received, stored, shipped or handled, situated on the right of way of any railroad company or adjacent thereto, to be used in connection with this line of railway at any station or siding, shall be public warehouses and shall be under the su- pervision and subject to the inspection of the commission : Pro- 7'idcd, That private warehouses and elevators used solely and ab- solutely for private storage purposes by the owner or owners thereof, are not included in this Act. Revised Codes, Idaho, 1908, sec. 1482c, as added by Act March 5, 1909. Sess. laws, 1909, p. 31. All such public elevators, warehouses and prospective pur- chasers shall be licensed annually by the commission. Applica- tions for such license shall be made before transacting ware- IDAHO LAWS. 153 house business. Every license issued shall expire on the thirtieth day of June the following year. The fee for said license shall be five dollars ($5.00) for each and every warehouse so operated and for each and every prospective purchaser. Such license shall be revoked by the commission for cause upon notice and hearing. Revised Codes, Idaho, 1908, sec. 1482d, as added by Act March 5. 1909, Sess.laws. 1909, p. 31. and amended by Act March 7, 1911. Sess. laws, 1911, p. 109. Any person, company or corporation operating such ware- house without license shall forfeit to the state for each day's operation, fifty dollars ($50.00), and such operation may be en- joined by the district court upon complaint of the commission. Revised Codes, Idaho, 1908. sec. 1482e. as added by Act March 5. 1909. Sess. laws. 1909, p. 31. Every public warehouseman shall receive for storage and ship- ment, so far as the capacity of his warehouse or warehouses will permit, all grain, hay. wool, or other products in suitable condi- tion for storage tendered him in the usual course of business with- out discrimination of any kind. At the request of the owner or consignee, such warehouseman shall store any grain, hay or other product of the same grade and of the same owner or consignee in a separate pile, which shall thereupon be marked and known as a special pile. If a warehouse receipt be issued for such hay. grain, wool or other product, it shall state that it is separately stored, and shall give the number of the pile, and number of sacks, name of pro- duct and kind, and gross number of pounds. The warehouse- man, agent or superintendent shall place upon or cause to be placed upon the grain or other product, printed on the sacks or other sign board in large legible letters, plainly visible from the ai.sle, the owner's name and pile number. Revised Codes. Ida- ho, 1908. sec. 1482f. as added by Act March 5, 1909. Sess. Laws. 1909, p. 31 and amended by Act March 7, 1911, Sess. Laws, 1911. pp. 109, 110. Every person having an interest in any hay, grain, wool or other product stored in any such warehouse, the state hay and grain inspector, and any legally licensed prospective purchaser shall have the right to examine at all times during business hours, any hay, grain, wool or other products so stored, and all parts of such warehouses; and c\cry such warehouseman, his agent 154 IDAHO LAWS. or servants, shall furnish proper facilities for such examina- tion, and samples of grain ; when requested by the inspector or legally licensed prospective purchaser; Provided; If the words "not for sale" be posted on said pile, such pile shall not be ex- amined or samples taken therefrom. Revised Codes, Idaho, 1908. sec. 1482g, as added by Act March 5, 1909. Sess. Laws, 1909, p. 31 and amended by Act March 7, 1911, Sess. Laws, 1911, p. 110. The members of said grain commission shall receive five dol- lars ($5.00) for each day in going to, attending upon and re- turning from any meeting of said commission and their actual, necessary expenses while attending such meeting, but, not more than four (4) meetings shall be held in any one (1) year: Pro- vided, That no one of said meetings shall continue longer than five (5) days. Revised Codes, Idaho, 1908, sec. 1483, as amended by Act March 5. 1909, Sess. Laws, 1909, p. 29. All moneys collected by the grain commission from any source, shall be paid into the state treasury on or before the fifteenth day of the month succeeding said collection, accompanied with a statement showing from what source collected and the amount of such collection. It shall be the duty of the state treasurer to receive all moneys aforesaid, and to credit the same to the grain inspection fund, and said fund is hereby appropriated for the purpose of carrying out the provisions of this chapter. Revised Codes, Idaho, 1908, sec. 1484, p. 667. All expenditures and salaries, not otherwise provided for in this chapter, shall be audited and paid out of the general fund upon warrants drawn by the state auditor, the same as the ac- count of any other state official. Revised Codes. Idaho, 1908. sec. 1485, as amended by Act March 5. 1909, Sess. Laws, 1909, pp. 29, 30. It shall be the duty of every person keeping, controlling, man- aging or operating as owner or agent, or superintendent of any company or corporation, and warehouse, commission house, for- warding house, mill, wharf, or other place where hay, grain, flour, wool or other products are stored, to keep in proper books, a record of all hay, grain, wool, flour, and other products received, stored or shipped, stating the gross weight, name of commodity. grade of commodity, per cent of dockage for dirt, smut, damp- ness, sprouted grain, bleached or other cause, net weight, and the name of the owner, and such book shall be opened to the IDAHO LAWS. 1^5 chief inspector or his deputies for examination and approval, and to deliver to the owner of such hay, grain, flour, wool or other product a warehouse receipt therefor, which receipt shall be consecutively numbered, and shall bear the date of its issuance, and state from whom received, the number of sacks, (if sacked), the gross number of pounds, dock for dirt, smut, dampness, sprouted, bleached or other cause, net number of pounds, and kinds and grade of grain, and the terms and conditions upon which such hay, grain, wool, flour and other product is stored; Provided: That in all such cases the receipt shall be conclusive evidence of what it contains as against said warehouse, and no further charge shall be made than is provided for in said receipt, and the grade so 'ihown by said warehouse receipt shall conform to the grades established by said grain commission; Provided, further: That upon request of the owner, grain or hay may be put in a special pile or bin without grading, and if hay or grain has been damaged, it shall be received and piled in a special pile marked with the distinguishing mark, which shall be shown on the receipt for the same, and give number of sacks, bales, name of commodity and gross number of pounds. The failure to issue such receipt as directed, or issuance of slips, memoranda or other form of receipt, shall be an oflfense punishable by the provisions of this Act. Revised Codes. Idaho, 1908, sec. 1486, as amended by Act March 7. 1911. Sess. Laws, 1911, pp. 110. 111. The receipt required in the last preceding section shall be in form as follows: (Name of firm or company.) Xo (Place and date.) Received in store from (name of consignor), ((|uantity), gross lbs., tare lbs., net lbs.. No (give here grade and name of commodity), at owner's risk of unavoidable dam- age, to be delivered at this warehouse, upon return of this receipt, properly indorsed, and payment of charges. This receipt negotiable when duly indorsed 1)y consignor. Storage to (here give amount and date). , ^ (Signed.) (Name of firm or company.) (Name of agent), Agent. Revised Codes, Idaho, 1908, sec. 1487. Above section construed: — Form of receipt considered and held to contain all the material and essential requirements pre- scribed. State V. ffencell. 17 Idaho 72?. No person shall issue any receipt or other vouchers as pro- vided for in the two peceding sections for any grain, flour, wool 1^6 IDAHO LAWS. or iitlior protluce not actually in store at llic time of issuing such receipt, or issue any receipt in any respect fraudulent in its character, either as to its date or tlic (|nantity, 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 prop- erty or any part thereof, without writing across the face of the same the word "duplicate." Revised Codes, Idaho, 1908, sec. 1488. No person operating any warehouse, commission house, for- warding house, mill, wharf, or other place where grain, flour, wool, or other product or commodity, is stored, shall mix any grain, flour, wool, or other product or commodity, of different grades together (or difTerent qualities of the same grade), or deliver one grade for another, or in any way tamper with the same while in his possession or custody ; and such person shall in no case mix different grades together while in store without the consent of the owner or owners thereof in writing. Revised Codes, Idaho, 1908, sec. 1489. No person operating any warehouse, commission house, for- warding house, mill, wharf, or other place of storage, shall sell, hypothecate, ship, transfer, or in any manner remove, or permit to be shipped, transferred or removed beyond his custody and control, any grain, flour, 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 written assent of the holder of the receipt. Revised Codes, Idaho, 1908, sec. 1490. Above section construed — Intent not necessary: — This stat- ute (sec. 1490) requires no specific intent on the part of defend- ant. State V. Henzell, 17 Idaho 725, 732. All checks or receipts given by any person operating any ware- house, commission house, forwarding house, mill, wharf or other place of storage for grain, flour, wool or other produce or com- modity stored or deposited, and all bills of lading and transporta- tion receipts of every kind, are hereby declared negotiable, and may be transferred by endorsement 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. Revised Codes, Idaho, 1908, Sec. 1491. IDAHO LAWS. 157 On the presentation of the receipt given by any person operat- ing any warehouse, commission house, forwarding house, mill, wharf, or any other place of storage for hay, grain, flour, wool, or other produce or commodity, and on payment of all the charges due thereon, or tending payment of said charges, the owner shall be entitled to the immediate possession of the commodity named in such receipt; and it shall the duty of such warehouseman, wharfinger, millman, or other bailee, to deliver such commodity to the owner of such receipt. If not delivered within twenty- four (24) hours after such demand, any warehouseman, wharf- inger, miller, or other bailee, after proper facilities have been provided, shall be liable to the owner for damages not exceeding one cent (Ic) a bushel for each day's delay, unless he shall deliver to different owners in the order demanded, as rapidly as it can be done with ordinary diligence. Revised Codes, Idaho, 1908 Sec. 1492, as amended by Act March 7, 1911. Sess. Laws 1911, p. 111. Any person shall have the right to use, as a site for a public warehouse, a proper portion of the right-of-way of any railroad, within the outside switches at any station or siding, upon the l^ayment of reasonable compensation. Revised Codes, Idaho, 1908. Sec. 1492a, added by Act March 5, 1909. Sess. Laws, 1909. p. 32. Whoever wishes to exercise such right may make written ap- plication to the person or company operating such railroad for such site, describing it, stating the size and capacity of the pro- posed warehouse, the station or siding at which it is to be built, the time for which such site is desired, and the amount of com- pensation the applicant is willing to pay. Revised Codes, Idaho, 1908, Sec. 1492b, added by Act March 5, 1909. Sess. Laws, 1909, p. 32. Within ten ( lOj days after the receipt of such application, the ij])erator of such railroad shall notify the applicant in writing of his acceptance or rejection of the compensation offered. If he fails so to do, he shall be deemed to have accepted the same. Upon accei)tance and payment or tender of the compensation, the appli- cant shall thereupon be entitled to the site described. Revised Codes, Idahf). 1908, Sec. 1492c. added by Act March 5. 1909. Sess. Laws. 1909, p. Z2. If the offer be rejected, and the parties fail to agree on com- 158 IDAHO LAWS. pensation. tlie applicant may present lo and lilc in the District Court of the County a veritied petition setting forth the making of the application with a copy thereof, the compensation offered, its rejection, and the failure of the parties to agree. The Court shall thereupon by order iix a time and place for iiearing such petition, not more than thirty (30) days from its presentation. Such order shall be served as a summons in said Court if served, at least twenty (20) days before the time set for such hearing, which service shall give the Court jurisdiction of both person and property. Revised Codes, Idaho, 1908, Sec. 1492d, added by Act March 5, 1909. Sess. Laws, 1909, p. 32. If such hearing be set at a time other than a term of Court where a petit jury is in attendance, the Court, unless a jury be waived, shall order the selection of twenty-four (24) jurors from the list returned by the County Board in the manner provided for drawing jurors for a general term of such Court, and the case shall be tried as other civil actions, and the compensation to be paid shall be assessed, l)()th as a gross sum and an annual rental. The respondent shall elect either to receive the gross sum or the annual rental, and, if he fail to elect, the petitioner may do so. and judgment shall be entered accordingly. Revised Codes, Idaho. 1908, Sec. 1492e, added by Act March 5, 1909. Sess. Laws, 1909, p. 32. Either party may appeal as from a judgment in a civil action within thirty (30) days from the entry of judgment; but such appeal shall not stay the right of the petitioner to use the site designated, if the petitioner shall give bonds with sureties ap- jjroved by the Court in double the gross sum of annual rental fixed 1)\- the judgment, condition to pay such sum or rental, and abide and satisfy any judgment the Supreme Court may render in the premises. Revised Codes, Idaho, 1908, Sec. 1492f, added by Act March .% 1909. Sess. Laws, 1909, p. 3?^. If the amount fixed by the final judgment be more than that ofifered in the application, the respondent shall recover costs and disbursements as in a civil action; otherwise, the petitioner. Revised Codes, Idaho, 1908, Sec. 1492g, added by Act March 5. 1909 Sess. Laws. 1909, p. 33. If the compensation, as finally fixed or agreed upon, be not pnid within thirty (30) days after the amount is finally settled, or if the applicant shall not begin the erection of such warehouse within two months, and complete the same and open it for busi- IDAHO LAWS. 159 ness as a public warehouse within five months, after designation of the site, the appHcation shall be deemed abandoned. Revised Codes, Idaho, 1908, Sec. 1492h, added by Act March 5, 1909. Sess. Laws, 1909, p. 35. Any person, firm or corporation superintendent or trustees of any Board of Directors of any firm or corporation, who shall violate any of the provisions of this Chapter shall be guilty of a felony, and, upon conviction therof, shall be fined in any sum not to exceed Five Thousand Dollars ($5000) or be imprisoned in the penitentiary of the State not exceeding five years or both; and in case of a corporation, the person acting for such corporation shall be liable for a like punish- ment upon indictment and conviction, and all and every per- son or persons aggrieved by a violation of this Chapter, may have and maintain an action at law against the person or per- sons, corporation or corporations, violating any of the pro- visions of this Chapter, to recover all damages, immediate or consequential, which he or they have sustained by reason of such violation, before any Court of competent jurisdiction, whether such person shall have been convicted under this Chap- ter or not. Revised Codes. Idaho. 1908. Sec. 1493. as amended by Act. March 7. 1911. Sess. Laws. 1911. pp. 111. 112. The following sections.— 1493a. 1493b. 1493c. 1493d, 1493e. 1493f. 1493g, 1493h, 1493i. 1493j and 1493k, were added to sec- tion 1493 by Act March 7. 1911. Sess. Laws, 1911. pp. 112-115: Sec. 1493a. — On or about the first day of May, the State Hay and Grain Commission shall meet and establish necessary rules and regulations for handling hay, grain and other farm prod- ucts for the ensuing year. Sec. 1493b. — Every warehouseman shall, on or before the fif- teenth day of July in each year, render to such commission, on l)lanks prepared by it. an itemized and verified report of all busi- ness transacted by him during the year beginning July first of the preceding year and ending June 30 of the current year. Such rep(^rt shall state the owner's name, name and kind of comm 'lity. gross and net pounds, per cent of dock, cause of dockage and the number of sacks or bales of all hay. grain, flour, wool or other products in his warehouse at the begiiming of the year, the own- er's name, commodity and kind, number of sacks or bales, gross and net weight. i)cr cent of dock, and cause of dockage of all 160 IDAHO LAWS. hay, grain, flour, wool, or other products shipped or delivered from such warehouse, and the owner's name, commodity and kind, number of sacks or bales, gross and net weight, per cent of dock, and cause of dockage of all hay, grain, flour, wool or other product remaining in the warehouse at the end of the year, and sucli report shall particularly specify and account for any overage or shortage in any kind of hay, grain, flour, wool or other products occurring during the year. The Commission may also require special reports from each warehouseman at such times as the Commission may deem expedient, and the Commis- sion may cause every such warehouse and the business thereof, and the mode of conducting the same to be inspected by one or more of its members or by its authorized agent whenever deemed proper, and the property, books, records, accounts, papers and proceedings of every warehouseman shall at all times during business hours be subject to such inspection. Sec. 1493c. — The Commission shall make such rules as may be necessary in regard to the receipt and delivery of grain, the issu- ance, cancellation, division and consolidation of warehouse re- ceipts, and such other matters relative to the management of the business of local warehouses as it may deem proper, and may prescribe a uniform system of books, records, accounts and reports to be made to the Commission. Sec. 1493d. — All weigh masters, agents or superintendents of any company, firm or corporation, operating any warehouse, com- mission house, forwarding house, mill, wharf, or other place where hay, grain, wool, flour or other products are stored, shall be licensed annually by the Commission. Application for such license shall be made before transacting warehouse business. Every license shall expire on the year following date of issue. The fee for such license shall be One Dollar ($1.00) for each weighmaster, agent or superintendent authorized to weigh any hay, grain, flour, wool or other farm products, or to issue ware- house receipts. Any such license may be revoked by the Com- mission upon notice and hearing. Sec. 1493e. — The State Hay and Grain Inspector, with the approval of the Commission, shall appoint such number of dep- uties as may be necessary, fixing salaries thereof, and may estab- lish headquarters and properly equip same with proper facilities IDAHO LAWS. 161 for recording all transactions, and testing, grading, and classify- ing all hay. grain, wool, flour, or other farm products. Sec. 1493f. — The fees for inspection and grading hay, grain, or other products shall be fixed by the Commission and shall be a lien upon the grain. If the grain is in transit, such fees shall he paid by the carrier and treated as advanced charges, and if received for storage, by the warehouseman, and added to the storage charges. All moneys so collected and all fines and penal- ties for violation of any of the provisions of this Chapter shall be paid into the State Treasury and known as the "State Hay and Grain Commission Fund," and paid out only on order of the Commission and Auditor's warrants. All interest recovered from deposits of said moneys shall be credited on the first of each month to such fund, and notice of the amount of such in- terest shall be sent to the Chief Hay and Grain Inspector. Sec. 1493g.^ — Upon written complaint filed with the Commis- sion, charging an Inspector of Hay, Grain or Scales with official misconduct, inefficiency, incompetency or neglect of duty, the Commission shall investigate such charge, and if any of such charges be sustained, shall remove such officer. Sec. 1493h. — All scales used in public warehouses, depot scales, street scales, or scales used in stock yards, for the weighing of grain, hay, wool, coal, livestock, or other farm commodities, shall be under the control of the State Hay and Grain Commis- sion, and subject to the inspection and correction at least once a year by the State Hay and Grain Inspector or iiis deputies, and shall be exempt from the jurisdiction of the Sealer of Weights and Measures. They shall be inspected at the request oi any person interested in any hay, grain, wool, coal, livestock, or other commodities, weighed or to be weighed thereon. If found incorrect, the cost of inspection shall be paid by the owner thereof, otherwise by the person requesting inspection. No scales found incorrect shall be used until re-examined and found correct. Sec. 1493i. — The Inspector shall, at least once a year, examine, lest and require to be correct all scales used in weighing hay, grain, wool, coal, livestock or other commodities, at any public wareh(juse, depot, stockyards, or other public place in the State, and after such scale is tested and found to be correct and in goo 422. DECISIONS AFFECTING WAREHOUSEMEN Q. "In good order" construed. — Where the plaintiff has signed a receipt for goods received from a carrier, or other 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 plain- tiff from afterward proving that the goods were in a damaged condition, it nevertheless raised a strong presumption in the de- fendant's favor. It is a fact about which evidence may be re- ceived to fully explain the circumstances under which the state- ment was made and signed. Bloomingdale v. Du Rell & Co. 1 Idaho 33. ILLINOIS LAWS. 165 CHAPTER XIII ILLINOIS LAWS PERTAINING TO WAREHOUSEMEN. The Uniform Warehouse Receipts Act is in force in Illinois; it was approved May 29, 1907, to be in force July 1, 1907, see Revised Statutes 111., 1912, pp. 1869-1878, sections 241 to 300 inch, chapter 114, also this volume, p. 1. The last section dif- fers from the Uniform Receipts Act and is as follows : Repeal: — All acts or parts of acts inconsistent with this act are hereby repealed : Provided, hoivever, That nothing in this act shall be construed to repeal any of the provisions of an act en- titled, "An act to regulate public warehouses and the warehous- ing 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), except in so far as said last named act relates to warehouse receipts for property stored in public warehouses of Class C, or to repeal the provisions of an act entitled "An act providing for the issuing and the cancellation of receipts 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). Rev. Stats. 111.. 1912, Chap. 114. Sec. 300. ARTICLE XIII OF THE CONSTITUTION OF ILLINOIS AND LAWS PER- TAINING TO WAREHOUSEMEN. Art. XI 11. CoN.sTiTUTiON of Illinois' Section 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 i)ublic 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 mal. it shall ])e deemed the duty of such warehouseman to dispose of. by de- livery or shipping, in the ordinary and legal manner of .so deliver- ing, that grain of any particular grade which was first received 12 178 ILLINOIS LAWS. I\v them, or which has been for the Umgest time in store in his warehouse ;• and. unless puhHc notice has l)een i;i\en tliat some portion of the grain in his warehouse is out of coiuhtion, or becoming so, such warehouseman shall deliver grain of quality equal to that received by him, on all receipts as presented. In case. howe\er. any warehouseman of Classes A or B 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 jniblic notice, 1)y advertise- ment 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 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 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 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, 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 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 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 efifect of which is to de- 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 ILLINOIS LAWS. 179 special bin, or by itself, as provided by tliis 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 warehouse- man to mix any grain of different grades together, or to select dift'erent 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 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 1)C 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. Examination of grain and scales — Incorrect scales: — All persons owning property, or wlio may I)c interested in the same. in any public warehouse, and all du1\' authorized inspectors of such property, shall al all limes, during ordinary business hours, be at full liberty to examine any and all property stored in any pubic warehouse in this state, and ;ill proper facilities shall be extended to such person by the warehouseman, his agents and servants, for an examination ; and all p.arts of ])ul)lir ware- houses shall be free for the inspection and examination of any person interested in property stored ilicrcin. or of any 180 ILLINOIS LAWS. authorized iusiicctor of such iii\>pcrt\-. And all scales used for the weighing- of prt)i)erty in puhlic warehouses shall he suhject to examination and lesl hy any duly authorized inspector or sealer of weights and measures, at any lime when required by any person or persons, agent or agents, whose property has been or is to be weighed on such scales — the expense of such test hv 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 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. 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 in- operative until such inspectors are legally appointed. Board of Trade v. The People, 105 111. 382. Assuming to act as inspector: — Any person who shall as- sume to act as an inspector of grain, 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 author- ized 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 inspector, shall be deemed guilty of a misdemeanor, and, on conviction, shall be fined in a sum not less than $100 nor more than $1,000, in the discretion ILLINOIS LAWS. 181 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. Revised Stats. III.. l')12. Ch. 114. Sec. 152. Owner, etc., dissatisfied with 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 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 I)e taken into store in such warehouse, the proprietor or manager of such warehouse shall be liable to the owner of such grain for double its market value. Id. ch. 114. sec. LS3. Combination: — It shall be unlawful for any proprietor, les- see or manager of any public warehouse, to enter into any con- tract, agreement, understanding, or combination, with any rail- road company or other corporation, or with any individual or individuals, by which the property of any person is to be de- livered to any public warehouse for storage or for any other pur- pose, contrary to the direction of the owner, his agent, or con- signee. Any violation of this section shall subject the offendei to be proceeded against as provided in section 23 of this act. Id. ch. 114, sec. 1.54. 182 ILLINOIS LAWS. Suits: — If any warehouseman of Class A shall be guilty of a violation of any of the provisions of this act, it shall be law- ful for any person injured by such violation to bring suit in any court of competent jurisdiction, ujion the bond of such ware- houseman, in the name of the people of the state of Illinois, to the use of such person. 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 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 Illinois. Id. ch. 114. sec. 155. Warehouse receipt assignable: — Warehouse receipts for property stored in any class of public warehouses, as herein de- scribed, 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 rceipt, and may be made either in blank or to the order of another. All warehouse receipts for property stored in public warehouses of Class C shall 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 fail- ure to place upon the warehouse receipts the distinguishing marks above provided for, the failure 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. Same — Effect of indorsement: — Indorsement and delivery of a warehouse receipt transfers the title to the stored property to the assignee and gives him the right of action for any breach of duty of which the warehouseman might be guilty respecting the goods while in the warehouseman's custody. Sargent v. Central Warehouse Co., 15 111., App. 553; Union National Bank V. Griszvold. 141, 111. App. 464. False receipts — Fraudulent removal: — Any warehouseman of any public warehouse who shall be guilty of issuing any ware- house receipt for any property not actually in store at time of is- suing 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 ILLINOIS LAWS. 183 property, or who shall remove any property from store (except to preserve it from fire or other sudden danger), without the re- turn 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. 774. See "Criminal Code," ch. 38, sec. 124, 125, Re- vised Stats. 111. 1912. ch. 114, sec. 157. Above section construed: — Held, sections 124 and 125 of the criminal code did not impliedly repeal the above. Sykcs v. The People. 127 111.117. Same — Warehouseman's receipt on his own goods — Sec- tion embraces all building: — Warehouse receipt issued by owner of his own grain in his own building and deposited as collateral for loan comes within above section. (124 and 125.) These sections include all buildings of every kind and character, in which goods, wares and merchandise are or may be stored, whether for hire or otherwise. McReynolds v. People, 230 111. 623, 634. Common-law remedy saved: — Nothing in this act shall de- prive any person of any common-law remedy now existing. Re- vised Stats. 111. 1912, 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 con- spicuous place in their business offices, and in each of their ware- houses, a printed copy of this act. Id. ch. 114, sec. 159. Repeal: — All acts or parts of acts inconsistent with this act are hereby repealed. Id. ch. 114, sec. 160. Issuance and cancellation of receipts: — An act pn)\i(ling for the issuing and the cancellation of receipts 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 "registered for cancellation" — Penalty for delivering grain without notice from the registrar that 1S4 ILLINOIS LAWS. said receipts have been registered for cancellation — Penalty: — Be it enacted by the People of the State of Illinois represented ill the General Assembly: That upon the receipt of any grain for storage in any public warehouse of Class A or Class B (in cities or counties where a chief grain inspector or deputy in- spector has or shall be lawfully appointed), the said warehouse- man shall issue or cause to be issued a receipt for the number of bushels, the kind, the grade of such grain, the owner there- of, and shall report within twenty-four (24) hours to the ware- house registrar the amount of said grain, the owner thereof, the number of the receipt issued therefor, 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 cities or counties wdiere a chief grain inspector or deputy 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 plainly marked by the warehouse registrar with the words "registered for cancellation," and the date thereof. And it shall be the duty of the warehouse- man, after said receipts have been stamped and marked "regis- tered for cancellation," and within twenty-four (24) hours after the last of said grain has been delivered, to report said receipts to the registrar cancelled ; and any warehouseman, agent, clerk or servant failing to issue receipts for grain, when received as afore- said, shall be subject to a fine of one hundred ($100) dollars for each offense. And any warehouseman, agent, clerk or servant so delivering any grain, where receipts have been issued as aforesaid, or inspector or person connected with the grain de- partment, knowingly permitting said grain to be delivered with- out notice from the registrar that said receipts have been regis- tered for cancellation, shall be deemed guilty of a crime, and upon conviction thehreof shall be fined an amount equal to the value of the property so delivered, or imprisonment in the peni- tentiary not less than one year nor more than ten years. Re- vised Stats. 111. 1912, 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 es- tal)lish a committee of appeal, and prescribe their duties (Ap- proved April, 1873. In force July 1, 1873.) ILLINOIS LAWS. ^^ Commission to establish grades : — Be it enacted by the Peo- ple of the State of Illinois, represented in the General Assembly. That the board of railroad and warehouse commissioners shall establish a proper number and standard of grades for the inspec- tion 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 distinction, shall be permitted while in store. Revised Stats. 111. 1912. ch. 114, sec. 161. Committee of appeals:— Within twenty days after this act takes effect, the board of railroad and warehouse commissioners shall appoint three discreet and competent persons to act as a committee of appeals, in every city wherein is located a ware- house of Class A, who shall hold their office for one year and un- til their successors are appointed. And every year thereafter a like committee of appeals shall be appointed by said commission- ers, who shall hold their office for one year and until their suc- cessors are appointed: Provided, said commissioners shall have power, in their decision, to remove from office any member of said committee at any time, and fill vacancies thus created by the appointment of other discreet persons. Id. ch. 114, sec. 162. Appeals — Notices: — In all matters involving doubt on the part of the chief inspector, or any deputy inspector, as to the proper inspection of any lot of grain, or in case any owner, consignee or shipper of grain, or any warehouse manager, shall be dissatisfied with the decision of the chief inspector or any deputy inspector, 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 necessary rules governing the manner of appeals as herein pro- vided. And all complaints in regard to the inspection of grain, and all notices requiring the services of the committee of ap- peal, may be served on said committee, or may be filed with the warehouse registrar of said city, who shall immediately notify said committee of the fact, and who shall furnish said commit- tee with such clerical assistance as may be necessary for the 186 ILLINOIS LAWS. proper discharge of their duties. It .shall be the duty of said committee, on receiving such notice, to immediately act on and render a decision in each 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 inspectors of grain, and shall execute a bond in the penal sum of five thou- sand 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 commission- ers. 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, under such rules as the commission 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 funds collected for the inspection service upon the order of the commissioners : Provided, that no person shall be appointed to serve on the committee 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 markd 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 ware- house; which charges shall be a lien upon all grain so inspected, and may be collected of the owners, receivers or shippers 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 amend- ment, is hereby repealed ; Provided, the provisions contained in said section shall remain in force until the grades for the in- spection of grain shall have been established by the commis- ILLINOIS LAWS. 187 sioners, as provided in section 1 of this act. (Grades fixed by commissioners. July 1. 1873.) Id. ch. 114, sec. 166. 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 Com- mission,'' shall be appointed as follows : Within twenty days after this act shall take effect, the governor shall appoint three persons as such commissioners, who shall hold their office until the next meeting of the general assembly, and until their suc- cessors are appointed and qualified. At the next meeting of the general assembly, and every two years thereafter, the gov- ernor, by and with the advice and consent of the senate, shall appoint three persons 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 suc- cessors are appointed and qualified. /(/. ch. 114, sec. 167. Qualifications: — No person shall be appointed as such com- missioner who is at the time of his appointment in any way con- nected with any railroad company, other common carrier or warehouse or who is directly or indirectly interested in any stock, bond or other property of, or is in the employment of any railroad company other common carrier or, warehouseman; 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, other common carrier or warehouse, or in any manner be employed by or connected with any railroad company, other common carrier or warehouseman. The governor shall have power to remove such commissioner at any time in his discretion. Id. ch. 114 sec. 168. Oath — Bond: — Before entering upon the duties of his office, each of the said commissioners shall make and subscribe, and file with the secretary 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 constitu- tion of the state of Illinois, and that I will faithfully discharge the duties of the office of commissioner of railroads and ware- houses, according 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. 188 ILLINOIS LAWS. Statement by warehouseman: — It shall he the duty of every owner, lessee and manager of every puhlic warciiouse in this state to furnish in writing" under oath, at such times as such railroad and warehouse commissioners shall require and pre- scribe, a statement concerning the condition and management of his business as such warehouseman. Id. ch. 114, sec. 175. Report by commissioners — Examination: — Such commis- sioners shall, on or before the first day of December in each year, or oftener if recjuired by the governor to do so, make a report to the governor of their doings for the preceding year, containing such facts, statements and explanations as will dis- close the actual workings of the system of transportation of persons or property by common carriers within this state and of the warehouse business in their bearings upon the business and prosperity of the people of this state, and such suggestions in re- lations thereto as to them may seem appropriate, and particu- larly first, whether in their judgment the railroads can be classi- fied in regard to 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 manage- ment of such railroads, other common carriers and warehouses, and report to him in writing their opinion thereon with their reasons therefor. Id. ch. 114, sec. 176. Examinations of railroad and warehouses — Suits :^ — Said commissioner shall examine into the conditions and management, and all other matters concerning the business of railroads, other common carriers and warehouses in this state so far as the same pertains to the relation of such roads, other common carriers, and warehouses to the public and to the accommodation and se- curity of persons doing business therewith, and whether such rail- road companies, other common carriers, and warehouses, their officers, directors, managers, lessees, agents and employees, com- ply with the laws of this state now in force, or which shall here- after be in force concerning them. And whenever 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 ure being violated, they shall prosecute or cause to be prosecuted ILLINOIS LAWS. 189 all corpoiations or persons guilty of such violation. Id. ch. 114, sec. 177. Cancellation of warehouse licenses: — Said commissioners are hereby authorized to hear and determine all applications for the cancellation of warehouse licenses in this state which may be issued in pursuance of any laws of this state, and for that purpose to make and adopt such rules and regulations con- cerning 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 can- cellation, and no person whose license as a public warehouseman shall be cancelled or revoked, shall be entitled to another license or to carry on the business in this state of such public warehouse- man, 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 prevent 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 pro- visions of this section shall be deemed null and void. Rev. Stats. 111. 1912, ch. 114, sec. 178. Power to examine books, etc.: — The property, books, rec- ords, accounts, papers and proceedings of all such railroad com- panies, other common carriers, and all public warehousemen, 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, offi- cers, managers, agents and employees of any such railroad corporation or other common carrier, and any all owners, mana- gers, 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. May examine witnesses, etc.: — In making any examination as contemplated in this act for the purpose of obtaining informa- 100 ILLINOIS LAWS. tion, pursuant to this act, said commissioners shall have the power to issue subi>oenas for the attendance of witnesses, and may administer oaths. In case any person shall willfully fail or refuse to obey such subpoena, it shall be the duty of the circuit court of any county, upon application of the said commissioners. to issue an attachment for such witness, and compel such witness to attend before the commissioners, and give his testimony upcMi such matters as shall be lawfully required by such commission- ers; 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. /(/. ch. 114, sec. 180. Penalty against witness: — 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 deemed guilty of a misdeameanor, and shall be liable to an indictment in any court of competent jurisdiction, and on convic- tion thereof shall be punished for each ofifense, 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 be- fore which such conviction shall be had. Id. ch. 114, sec. 181. Penalty against railroad companies, other common carriers, warehousemen, etc.: — Every railroad company or other com- mon carrier, and every officer, agent or employee of any railroad company, or other common carrier, and every owner, lessee, mana- ger or employee of any warehouse, who shall willfully neglect to make and furnish any report required in this act at the time required, or who shall willfully and unlawfully hinder, delay or obstruct said commissioners in the discharge of the duties here- by imposed upon them, shall forfeit and pay a sum of not less than $100 nor more than $5,000 for each offense, to be recovered in an action of debt in the name of the People of the State of Illi- nois; and every railroad company or other common carrier, and every officer, agent or employee of any such railroad company or other common carrier and every owner, lessee, manager or agent or employee of any public warehouse, shall be liable to a like pen- alty 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 at- ILLINOIS LAWS. 191 torney in any county, on the request of said commissioners, to institute and prosecute any and all suits and proceeding which they or either of them shall be directed by said commis- sioners to institute and prosecute for a violation of this act, or any law of this state concerning railroad companies or other common carriers, or warehouses, the officers, employees, owners, operators or agents of any such companies, common carriers, or warehouses. Id. ch. 114, sec. 183. In name of people — Pay — Qui tam actions : — All such prose- cution shall be in the name of the people of the state of Illi- nois, and all moneys arising therefrom shall be paid into the state treasury by the sheriff or other officer collecting the same; and the state's attorney shall be entitled to receive for his com- pensation, from the state treasury on bills to be approved by the chairman of the commission, and 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 tam action as authorized by law and of receiving such part of the amount recovered in such action as is or may be provided under any law of this state. Id. ch. 114, sec. 184. Rights of individuals saved — This act shall not be so con- strued as to waive or affect the right of any person injured by the violation of any law in regard to railroad companies, other common carriers or warehouses, from prosecuting for his private damages in any manner allowed by law. fd. 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.) Seal — How records, etc., authenticated: — Be it enacted by the People of the State of Illinois, represented in the General As- sembly: That the railroad and warehouse commission of this state may, for the authentication of its records, process and pro- ceedings, adopt, keep and use a common seal, of which seal ju- dicial notice shall be taken in all courts of this state; and any process, writ, notice or other paper which the said commission may be authorized by law to issue shall be deemed sufficient if signed by the secretary of said commission and aiUhenticated by such seal; and all acts, orders, proceedings, rules of in.spection, 192 ILLINOIS LAWS. entries, uiimUcs, schedules and records of said commission may he pni\ed in an\ court of this stale l)y a copy thereof, certified to hy the secretary of said commission, and with the seal of said commission attached. Id. ch. 114, sec. 185/2. Weigh-master — Appointment of: — Be it enacted by the Peo- ple of the State of llli)iois, represented in the General Assembly: That there shall he appointed by the Railroad and Warehouse Commissioners in all cities where there is state inspection of grain, a state weigh-master and such assistants as shall be neces- sary. Id. ch. 114, sec. 186. Duties 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 cer- tificate of such weigh-master and assistants in the discharge of their aforesaid duties shall be conclusive upon all parties in in- terest. Id. ch. 114, sec. 187. Fix fees: — The Board of Railroad and Warehouse Commis- sioners shall fix the fees to be paid for the weighing of grain or other property, which fees shall be paid equally by all par- ties interested in the purchase and sale of the property weighed, or scales inspected and tested. Id. ch. 114, sec. 188. Weigh-master — Qualifications — Bond — Compensation : — Said state weigh-master and assistants shall not be a member of any board of trade or association of like character ; they shall give bonds in the sum of tive thousand dollars ($5,000) condi- tioned for the faithful discharge of their duties, and shall receive such coinpensation as the Board of Railroad and Warehouse Commissioners shall determine. Id. ch. 114, sec. 189. May adopt rules: — The Railroad and Warehouse Commis- sioners shall adopt such rules and regulations for the weighing of grain and other property as they shall deem proper. Id. ch. 114, sec. 190. Neglect of duty — Penalty: — In case any person, warehouse- man 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 property in accordance with the tenor and mean- ILLINOIS LAWS. 193 ing of this act they shall forfeit the sum of one hundred ($100) dollars for each offense, ty be recovered in an action of debt, before any justice of the peace, in the name of the people of the state of Illinois; 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 : — \\'hoever 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 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 speci- fied in the preceding section, or being in the possession or con- trij] of such property, shall sell, incumber, ship, transfer, or in any manner remove from the place of storage, or allow the same lo be done, any such grain, flour, pork, wool, salt, or other goods, wares and merchandise, without the written consent of the hold- er of such receipt or other evidence of deposit or storage, ex- cept in cases of necessity for the purpose of saving such prop- erty 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 mer- chant, or other j)erson selling on commission, or his agent, clerk or servant, shall convert lo 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 13 194 ILLINOIS LAWS. ;aiiliorizcl agent, ho slial! he I'liu'd not cxccochng $1,000, or con- tinoil in the cnnnly jail not excecdinj^ one year, or hoth, and >hall he haMe to the jierson injnred in donhle the \aUte of the propertN or anionnt ot' the money so eonxerted Id. eh. 3.S, sec. Safe deposit companies — Boxes subject to inspection by state treasurer and attorney general upon death of lessor — Penalty: — If a foreign executor, administrator or trustee shall assign ov transfer any stock or ohhgations in this state stand- ing in the name of the decedent, or in trust for a decedent, liable to any such tax. tlie tax shall he paid to the treasurer of the proper county on the transfer thereof. No safe deposit company, trust company, corporation, hank or other institution, person or persons having in possession or under control secur- ities, deposits, or other assets belonging to or standing in the name of a decedent who was a resident or non-resident, or be- longing to. or standing in the joint names of such a decedent and one or more persons, including the shares of the capital stock of. or other interest in. the safe deposit company, trust company, corporation, bank or other institution making the delivery or transfer herein provided, shall deliver or transfer the same to the executors, administrators or legal representatives of said decedent, or to the survivor or survivors when held in the joint names of a decedent and one or more persons, or upon their order or request unless notice of the time and place of such intended delivery or transfer be served upon the state treasurer and attorney general at least ten days prior to said delivery or transfer ; nor shall any such safe deposit company, trust com- pany, corporation, bank or other institution, person or persons, deliver or transfer any securities, deposits or other assets be- longing to or standing in the name of a decedent, or belonging to. or standing in the joint names of a decedent and one or more persons, including the shares of the capital stock of. or other interests in. the safe dei)osit company, trust company, corporation, bank or other institution making the delivery or transfer, without retaining a sufficient portion or amount thereof to pay any tax or interest which may thereafter be assessed on account of the delivery or transfer of such securities, deposits or other assets, including the shares of the capital stock of, or other interests in, the safe deposit company, trust company, corpora- ILLINOIS DECISIONS. 1^5 tion, bank or other institution making the delivery or transfer, under the provisions of this article, unless the state treasurer and attorney general consent thereto in writing. And it shall be hiwful for the state treasurer, together with the attorney gen- eral, personally or by representatives, to examine said secur- ities, deposits or assets at the time of such delivery or transfer. Failure to serve such notice or failure to allow such examination, or failure to retain a sufficient portion or amount to pay such tax and interest as herein provided shall render said safe deposit company, trust company, corporation, bank or other institution, person or persons lial)le to the payment of the amount of the tax and interest due or thereafter to become due upon said securities, deposits or other assets, including the shares of the capital stock of. or other interests in, the safe deposit company, trust company, corporation, bank or other institution making the deliverv or transfer, and in addition thereto, a penalty of one thosuand dollars; and the i)ayment of such tax and interest thereon, or of the penalty above described, or both, may be en- forced in an action brought by the state treasurer in any court of competent jurisdiction. Id. ch. 120. sec. 374. Above section construed — Held to be constitutional: — In a test case the above section, in a \ery elaborate and carefully con- sidered opinion, held not to be violative of either the state or federal constitution. National Safe Deposit Co. v. Stead, 250 III. .=^84. Alf'd by Sup. Ct. U. S., Jan. 5, 1914, No. 138 Oct. Term 1913, not yet reported. Note: Under a statute in N-ew York, the same as the above, it was held that a safe deposit com|)any which failed to notify the state official prior to allowing a safe to l>e opened which it had rented to two persons one of whom had died was not liable to the penalty named in the statute because the contents of such safe were not "in possession or under control" of such safe deposit company. People of the State of New York by (Jlynn, Comptroller v. Mercantile Safe Deposit Co., 143 N. V. Sup. R49. DECISIONS AFFFXTING WAREHOUSEMEN A. Bailment and sale — The depositing of grain in a public ivarc- house and the mixing thereof zvith other grain is a bailment: — Tf grain be deposited in a pul)lic warehou.se 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 (|ua1ily as that deposited and the title to bucli deposited grain does not jjass to the warehouseman. IW ILLINOIS DECISIONS. ill short, it is a hailiucnt only and not a sale. Natimial Ihiiik of Pontiac v. Langan. 28 111. App. 401; Mcadoivcraft v. German National Bank, 95 111. 1_'4; Canadian Bank v. McCrca. lOO 111. 2S1. Same — W'licn sale and not a bailment — Pr\7'atc warehouse- men — Receipt eonstrued: — 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 stor- age hut a sale of the wheat and that the title passed to the mill- owner. The fact that the wheat was mixed with other wheat in the mill does not change the case. The wheat being subse- quently destroyed by hre. 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 fire: — A warehouseman received grain without any special con- tract from which it could be shown whether it was a bailment or a sale. The evidence showed that there was a notice posted in tJie warehouse, in which it was stated that grain would be received 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 warehouse- man disposed of the grain and- counted on being able to sub- sequently purchase a sufficient quantity of grain in event that the depositor made a demand for the same or gave to the ware- houseman an order to sell. Subsequently, a fire occurred and the warehouse and contents w^ere 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 transaction was a sale and not a bailment. Cloke v. Dowse, 38 111. App. 252. afl^'d 137 111. 393. Same — Destruction by fire — Evidence considered — PlaintifiF deposited grain in defendant's mill under an agreement that the same might be mixed and used but that defendant should keep on hand an equal amount of the same grade. The mill and contents were destroyed by fire. An action was brought for the value of the wheat. The evidence and instructions were con- sidered and held sufficient to suport a verdict for defendant. Mayer v. Gersbacker, 207 111. 296. ILLINOIS DECISIONS. 197 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 prop- erty 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. Evidence was received to prove a custom among warehousemen showing that depositors who stored grain never expected to receive the identi- cal grain back, but to get their money for the same at the market price on the day on which the demand was made. Lonergan v. Stewart, 55 111. 44. Same — Special agreement zvith 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 agreeemnt 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 refused 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. ]\'right. 38 111. Ai)p. 98. B. Ordinary care— Grain purchased for customers — Different rule: — Where warehousemen purchased grain for others, which was subsequently stored in their warehouse, the following in- struction to the jury in an action brought against the ware- housemen for the recovery of the value of the grain, held cor- rect; that, by the terms of the receipt given by the defendants to the plaintiff, tiie defendants became the bailors of the plain- tiff and were only bound to take reasonable. care of the grain and have it ready for delivery for a reasonable time, and if tiie 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 198 ILLINOIS DECISIONS. from ihc c\ idcncc that the plaintiff tailed tc^ take it away with- in a re;isonal)le time after being notified to do so. Myers ct al. V. Walker, M 111. o53 ; St. Louis, A. nan v. National Safe Deposit Co., 124 111. App. 419. Same — When not attached to. do not become part of the realty: — During the occupation of rented quarters by a safe de- posit company including a large num])er of boxes it added at its own cost over two thousand boxes to the c{|uipment. The addi- tional boxes were not attached to the original boxes nor the realty in any manner save by their weight. Held, the safe de- posit company at the expiration of its lease had the right to remove such additional boxes as they had not become fixtures to the real estate nor trade fixtures. Merchants Loan c'r T. Co. V. Merchants Safe Deposit Co., 167 111. App. 315. H. Storage charges — luiiliire to pay — Demand: — It apeared from the evidence that the defendant, a warehouseman, received wheat 204 ILLINOIS DECISIONS. for storage, for which there should be no charge fe)r a short time ill order that the phiintiff might have the opportunity to re- move the same. The warehouseman also agreed to deliver the wheat upon demaml by the owner. Jn the trial of the ease 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 be- fore suit brought, it should tnid for the defendant. The appel- late court held that plaintiff" was entitled to judgment for the value of the wheat and that the defendant was. at most, entitled to a deduction from sucli amount ecpiivalent to a reasonable charge for storage. Leonard v. Pitntoji et al., 51 111. 482. Sa)iie — Liability for — IVarehouse receipt: — Corn was removed from a warehouse by the assignee of the warehouse receipt ; in an action against him for the recovery of the storage charges, it was held that although the lien against the corn for the charges was gone, the warehouseman could still hold such assignee per- sonally responsible therefor. Where one accepts a warehouse receipt he, at the same time, assumes liability to pay storage charges accrued against property represented thereby. Cole v. lyiig et al., 24 111. 100. Lien — Not lost by fraudident issue of receipt: — The mere fact that a warehouseman fraudulently issues reecipts for goods not on store with him does not deprive him of his lien for storage charges against other goods in his possession. Low v. Martin, 18 111. 286. Storage charges — Sale for: — A warehouseman in order to en- force his lien for storage charges must proceed in the manner prescribed by law. A sale made otherwise will render him liable for conversion. Van Ruren S. & V. Co. v. Mann, 139 111. App. 652. Same — Not lost by sale of property: — The charges of a ware- houseman are a first lien upon the property and are not affected by a sale of the property though such sale may be void. Ceroid V. Guttle, 106 111. App. 630. Same — When goods are surrendered only lien allowed uuill be that stipidated for: — At the time of the disastrous fire in Chi- cago 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 ' ILLINOIS DECISIONS. 205 possession of all wheat remaining in the warehouses immediately after the hre, the warehousemen reserving a lien of two cents per bushel for storage. The grain was sold, and after the pro- ceeds were obtained 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 preserving it. The manner in which the warehousemen released the property constituted a waiver of all liens thereon excpt such as were expressly reser\ed by the stipulation existing before the sale. Board of Trade v. Buckingham et al., 65 111. 72. Same — Lost by parti)ig ivith the goods, not revived if posses- sion be again obtained: — The court ruled that, where goods were redelivered by a warehouseman to the consignee upon receipt of the note of the consignee for the freight due. that the lien which the warehouseman 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 — Attachment of as property of tvarehouseman — Quaere? — // paid to sheriff he liable therefor to attaching plaintiff: — In an action against a sheriff for misconduct it was shown that plaintiff had sued a warehouse company and had caused to be placed in the sheriff's hands a writ of attachment against such warehouse company. The siieriff levied not only on the prop- erty of the w'arehouse company but also on all its right, title and interest in the stored property upon the theory that the com- pany had a lien thereon for its storage charges and loans and ad- vances made thereon. The sheriff released to the owners the goods he thus held upon the payment of accrued storage charges and advances. By these means the sheriff acquired ])Ossession of a considerable sum of money. Subsequently and without plaintiff's knowledge the sheriff i)aid such sum o\er to a credi- tor f)f the warehouse company upon that company's order to do so. It was held it was unnecessary to determine in this case whether the levy upon accrued storage charges was proper be- cause the warehouse company had waived objection thereto by giving an order to the sheriff in respect to the sums collected for such charges ; thus acknowlcflging such moneys to belong to it and further because tiic court fcnuul there had hern a derelic- tion of duty on the part of tiic sheriff after he had cullecLcd these '^06 ILLINOIS OKCISIONS. iiiono\s. It was the iluty of the shcrilY to attach these moneys in his own liantls for phiintitT's henelit and his partinf]^ with them nnder the cirenmstances stated rendered him lial)lc to the plain- tilT therefor. First XatiiUial Iniiik of Cliiccu/o v. Ihmchctt, 126 111. 4'"). Contract bcttvccn xvarchouscmau and railroad company — In- ability to store amount of grain offered — Reasonable construction of contract: — A railroad company a,c:rccd 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 tlie evidence that the warehouseman could not store at any one time more than 1,100,- 000 bushels. The above section of the contract was construed to mean that the railroad company was obliged, during the ten years in which the agreement was to continue in force, to olTer to the warehouseman an average of 5,000,000 bushels of wheat per year. Diinlap ct 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 {Ya) cent per month until sold, it was held that the warehouseman could terminate such contract upon giving notice to the depositor of his intention to do so. The court said that it was not reasonable to suppose that a warehouse- man, by a contract of this kind, should be hampered through life for the inconsiderable compensation stipulated for therein. Cushman v. Hayes, 46 111. 145. Storage contract — One using space hired by another bound by terms of agreement: — Where an agreement is made with a ware- houseman for the use of a cold storage room for a stipulated sum per month by which the warehouseman is to be free from all responsibility for its keeping and the person renting such room allows another to place meat therein which becomes spoiled it was held, in an action by the person depositing the meat against the warehouseman that he was bound by the agree- ment the warehouseman held with the one renting the room and hence there could be no recovery. Terry v. Mattoon Ice & Stor- age Co., 103 111. App. 265. ILLINOIS DECISIONS. 207 Same — Household goods and clothes — Sale of unclaimed property — Statute not applicable to ivar chouse men: — In an action for the unlawful conversion of chattels, if the price at which they could have been sold and the price at which other articles equally useful to the owner of the chattels could have been bought at the time and place of such conversion can be shown, this will establish a market price and such market value must control. But clothing and household goods which have been worn and used cainiot in all cases be said to have a market price and will not sell as second hand goods for what they are worth to the owner, and in such case in order to give the owner com- pensation he must be permitted to recover the actual value of such articles. Sections 1 and 3. Ch. 141. R. S., relating to sale of unclaimed property do not apply to warehousemen. Head v. Becklenhcry, 116 111'. App. 576, 580. I. Commincjliiig of goods — IV hen replevin may be mai)ttained:—- In order to maintain an action of replevin against a warehouse- man, where the property has been commingled with other prop- erty stored, the plaintiff must show tliat the property replevined was his property, that is, the identical property delivered in store ; or that the intermixture by defendant, which made identihca- fion of his property practically impossible, was the fault of the warehouseman, or that it was done at least without consent of the plaintiff. Lo^o v. Martin. 18 111. 286. Same — By public ■ivarclwuseman — Neither a bailment nor a sale: — The doctrine that to constitute a bailment the obligation must be to restore the identical thing which was delivered, and that where the obligation of the receiver is to return another thing of equal value such receiver becomes a debtor to make such return and the transaction is a sale, has no application when the receiver comes into possession in the ca])acity of a ])u])lic ware- houseman. The statute contemplated that grain deposited in public warehouses hy diUVTcnt owners will not l)e kept separate and that holders of receipts issued by the i)ro])riet()rs of such warehouses will not recei\e the same grain they juit in storage, secures to the owners of such receipts the title and right to a like (|uantity of other grain e(|ual in value. Such warehouse- men do not become debtors to retniii the identical i^rain de- ]K)sited, and therefore debtors for the value of the grain, hut 208 ILLINOIS DECISIONS. custodians charged witli the obhgatioii to restore in quality and quantity. Snydackcr v. niatchlcy. \77 111. 506. 512. Same — Custom — Constitutes sale — Depositary beeomes debtor of oivner: — It was shown that it was customary in Chicago for commission merchants to receixe 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 the order, he could have so provided under the terms of the Ware- house Act. Bailey v. Bensley et al.. 87 111. 556. Same — Title in owner — Not subject to zvarehouscman's debts: — Proprietors of public warehouses are not debtors of the owners of grain stored, but are custodians, charged with the duty to restore, in quantity and quality, such grain as they receive. If grain is placed in a warehouse by the owner under a contract, subject to his order and control, it does not make any difference v»-hether it is a private or a public warehouse. No title could pass under such an arrangement and a creditor of the warehouse- man cannot seize and sell the property for the warehouseman's debts. Yockey v. Smith, 181 111. 564, 567, 569; affirming 81 111. App. 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 intermixture, 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; Hozve 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 differ- ent owners was stored in a public warehouse in a common mass, ILLINOIS DECISIONS. 209 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 com- mon, the owners are all liable to sustain any loss which may occur by diminution, decay, or otherwise, in proportion to their re- spective interests. Persons who purchase warehouse receipts become likewise 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 jurisdiction will, in view of the fact that the property is a trust one, compel the proper ])rotection 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 ' ivarehouseman — Partial delivery: — Where, in the above case, the warehouseman assigned all the interest which he had in grain stored in his warehouse, belong- ing to various parties, which grain was there commingled with 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, however, it then appeared that any grain remained, the warehouseman was entitled thereto. Id. Substitution of other property — Equitable lien — Estoppel: — .\ warehouseman becoming insolvent, a receiver was appointed, 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 with- out the bank's knowledge, the goods represented by the receipts were removed by the depositor, with the consent of the ware- houseman, and other goods were substituted in their place. It was contended on 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 property jjjedged 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 constituted a violation of the statute jiertaining to warehousemen, and a 14 210 ILLINOIS nFXISUINS. fraud ;ii:[aiiist the hank. It was further lirld that the hank had au ociuitahlc Hen upon tlie stored iJroperty and tliat the vvare- houscuian was estopped to deny that the goods in his warehouse were the identical goods represented hy the receijjt held by the bank. It was further /wld that the appointnieiU of the receiver did not atYect the claim of the hank, which claim was a lien against the goods i)rior to the appointment. Iloffiiiaii ct al. v. Sclioycr ct al.. 14.^ ill. 5^)8. Substitution of other goods — Constitutes a fraud : — Tf a ware- houseman, who has issued a negotiable warehouse receii)t for proi)ert\- 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 hokler of the receipt, /(/. K. Attachment — Grai)i deposited in mass not subject to, in an action against zvarehouseman: — A deposit of grain in a common mass in a public warehouse is a bailment and not a sale thereof; therefore, in an action against a warehouseman, an attachment cannot be legally levied against the grain of any other depositors, the title thereto remaining in them. National Bank of Pontiac v. Langan, 28 111. App. 401. Same — Stored property taken from, zvarehouseman under writ of — Good defense: — When stored goods had been removed from the possession of defendant warehouseman under a writ of at- tachment this is a good defense in an action of trover against him brought by one who had purchased the warehouse receipts, which receipts did not embody the requisite terms as provided in the uniform warehouse receipts act, Revised Statutes 111. 1912, p. 1869. Manufacturers Mercantile Co. v. Monarch Refrigerat- ing Co., 169 111. App. 562. 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 with- out the consent of the plaintiff. Loiv v. Martin, 18 111. 286. Same — Breach of bond — Burden of proof: — When the con- ditions of the replevin. bond are broken, any person injured may ILLINOIS DECISIONS. 211 sue in the name of the sheriff to his own use. Where 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 addition 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. Hanchctt v. Buckley ct al.. 27 111. App. 159; Atkin v. Moore, 82 111. 240; Replevin Act. sees. 10, 25,' ch. 119, R. S. clones v. Shnpson, 116 U. S. 609; Montague v. Hatichett, 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 place of sale, in the absence of a contract that the pledgee may sell of his own motion. Cushman v. Hayes, 46 111. 145. Same — Sale zvitlwut court decree — Measure damages: — Plaintiff, a married man, stored certain household goods with defendant warehouseman, receiving a receipt. Subsequently he borrowed $20 from defendant. He endorsed the receipt "For value received I hereby sell and assign to W. C. Reebie & Bro. all H. ]]. goods herein mentioned," and signed and delivered same to defendant. Defendant delivered to i)laintiff an agree- ment to reconvey upon payment of sum named. Later, defend- ant sold the goods at auction. Held: that the transaction was a mortgage, that as plaintiff's wife did not join, it was void, and that defendant was a warehouseman with no right of sale. That bv selling without a decree of court em])owering him to do so. he converted the goods and the measure of damage was the value of the goods on the date of the demand for them. Reebie v. Brackett. 109 111. App. 631, 636. Same — Storage to secure an advance — Effect: — A written con tract of storage to secure an advance, construed and held to be "a conveyance of personal property having the effect of a mort- gage" which, not having been acknowledged and recorded, as between the parties created a lawful lien on the identical grain, 212 ILLINOIS DKCISIONS. but was witliout validity as ajjainst tlio rij^lits and interests of third persons. Snydacker v. niatchlcy. \77 111. 506. 510. N. Negligence — Misdelivery — irarehoiiscinan responsible: — An action for trover lies ag^ainst a warehouseman who, by mistake, delivers goods to a wrong person, and be will be held responsible for the loss as upon a wrongful conversion. Brink's Chicago Cit\ Express Co. v. Hendricks, 104 111., .\pp. 154. Same — Same — Same — Sampler's ticket not a warehouse re- ceipt: — 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 deliverd 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 warehouseman was responsible to the owner for the value of the wheat. Peoria & Pekin Union Ry. Co. v. Buckley et al., 114 111. 337. Same — Exposure to odors: — In an action for damage to flour stored with warehouseman, it was held that a warehouseman must be presumed to know the ordinary nature and qualities of flour and that it should not be stored where it would be per- meated with peculiar and pungent odors of chemicals or with smells and gases, which would naturally render it unfit for use. Verdict for plaintifif affirmed. Sibley Warehouse Co. v. Durand Co., 200 111. 354, 358. Damage to goods — Prima facie case — Burden of proof: — It is sufficient to make out a prima facie case for i)laintiff to show that the property was received by the warehouseman in good ILLINOIS DECISIONS. 213 condition, that it was damaged while in the warehouse, and that upon demand for its return it was either not delivered, or was delivered in damaged condition. The burden then shifts to the warehouseman to exonerate himself from liability by showing any cause that would excuse him. Parr\ v. Squair, 79 111. App. 324. 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 concerning the temperature in which the onions were to be stored. Under these circumstances, instruction to the jury to the follow- ing effect was held erroneous: If it found, from the evidence, that the plaintitt violated his contract with the defendant in failing to keep the onions in question ;';/ 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 chargfe. 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, 7Z 111. App. 394. Same — Same — Insufficient evidence: — Appellant brought an action in assumpsit against appellee for storage charges upon a large number of apples. Appellee pleaded the general issue and gave notice of set-off thereunder. It was alleged by appellee that many of such apples had been ruined because of the failure of ajjjjellant to maintain an agreed temperature. The jury re- turned a verdict for defendant in the sum of $500.00 "in excess of plaintiff's storage charges $2,182.43," The trial court struck out the part of the verdict quoted, overruled appellant's motion for a new trial and rendered judgment on the verdict as amended. It was held on appeal there was not sufficient evidence to justify a verdict that the apples were damaged by reason of failure to maintain a certain temperature or that such an agreement had been made. Judgment was reversed and a new trial ordered. IVestern Union Cold Storage Co. v. Warner et al., 7Si 111. App. 577. Same — Measure of damages: — In a case where goods are received in cold storage and it is alleged that they have depre- ciated in value as result of failure f)n the part of the warehouse- 214 ILLINOIS DECISIONS. man to inainiain llu- ro(|uisite tcinperalurc. tlio proper measure of ilainagcs sluniUl !ic llic market \a\uv of the jj^oods on the day of demand less the storage ehar<;es (hie thereon. U'rstcni Union Cold Storage Co. v. linnrliiu/. 73 111. App. .VH. Non-delivery of yoods — Burden of proof: — In an action against a warehouseman for not delivering goods, the burden of proving delivery to the warehouseman and the failure to re- deliver by him. is on the plaintiff, but those facts Ijeing proved, it devolves on the warehouseman to show that the goods were lost without his fault. Edgerton v. C. R. !. & P. Ry. Co., 146 111. App. 100, 203. Aflirmed 240 111. 311. Missing goods — Burden of proof: — In an action against a warehouseman for injury to goods stored with him, it was held that the presumption of negligence on the part of the warehouse- man as to certain goods which were destroyed by fire, was re- butted, but as to missing goods the loss of which was unexplained, the law presumed negligence and imposed on the warehouseman the burden of showing that he had exercised -juch care as re- quired by the nature of the bailment. Cumins v. JVood, 44 111. 416. quoted in Edgerton v. C. R. I. cr P. Ry. Co., 146 111. App. 199, 203. Evidence — Receipt for goods by teamster not binding as ad- mission of their condition :—Deien(.hmt warehouseman delivered certain flour to plaintiff's teamster who took a receipt signed by the teamster, reading "Received in good condition the articles named in this order." Held: that the delivery of the flour being admitted, the trial court properly rejected the receipt as evidence of the condition of the flour. It is not within the ordinary scope of the authority of a teamster sent after goods to make an admission of that kind, and there was no evidence of actual authority to do so. Sibley JVarehouse Co. v. Durand Co.. 200 111. 354, 356; affirming 102 111. App. 406. Removal of goods to different room — Damage by fire — When zvarehouseman not liable: — PlaintifT contracted with defendant warehouseman to store his goods in a certain inside room. Afterwards, without the knowledge of plaintiff the defendant removed the goods to an outside room with an outside window. A fire in an adjoining building spread to defendant's warehouse and greatly damaged plaintiff's goods, while other goods at the time in the room in which defendant has contracted to store ILLINOIS DECISIONS. 215 plaintiff's goods were only slightly damaged. Held: that the re- moval of the goods of plaintiff and the hre had no natural or necessary connection. The removal of the goods was but the occasion, not the cause of the damage. Judgment directed for defendant. McRae v. Hill, 126 111. App. 349. O. Measure of damages: — 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 ai, 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 con- verted, at the time of demand, is the proper measure of damages. The actual amount received is the proper measur^^ where the taking was not tortious. O'Reer v. Strong, 13 111. 690; Mc- Donald y. Brown, 16 111. 320; Cushman v. Hayes. 46 111. 145. 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 be maintainefl by him and thai the issuance of the ])olic\' 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 apeared 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" witiiin the meaning of the policy. Traders' Insur- ance Co. v. Facaud et al., 1.50 111. 245. Contract by warehouseman to insure — Not responsible if suit on policy terminates against him without his /an//.— Defendant, 216 ILLINOIS nr.CTSIONS. a warehouseman, contracted with plaintiff to receive and store a large number of barrels of ai:)ples. the warehouseman agreeing to keep them insured with responsible companies. This the warehouseman did and, after destruction by tire, tlie warehouse- man brought an action against the companies for the recovery of the amount stated in the jwlicies. The warehouseman had given a receipt to the owner which provided tiiat a large pro- portion of the property stored was to be insured only up to a date prior to the destruction by hre. This receipt had been given to the owner, at his request, and on account thereof, the warehouseman failed to recover from the insurance company for the loss of the property. In an action between the owner of the sroods 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. Insurance — Failure to aver in petition absence of other insur- ance, fatal: — Petitioner's goods were destroyed by fire while stored with defendant \\^oods Motor Vehicle Company, which was at the time in the hands of a receiver. The receiver had procured policies of insurance on property in his possession and had collected the money. Petition for accounting. Held: as the petition contained no averment that petitioner had no other insurance, or was in no way, other than by said policies indemni- fied against loss by the fire in question, that the omission was fatal to the sufficiency of the petition. The absence of other insur- ance is a condition upon which alone relief could be granted. Friedman v. JVoods Motor Vehicle Co., 123 Fed. 413. Q. IVarehouse receipts— Cannot limit liability: — A warehouseman cannot in a warehouse receipt limit or exempt himself from liability unless articles are listed or itemized, and cannot provide for a limitation of liability unless value of goods is stated. Sec- for a limitation of liability unless value of goods is stated. Van Buren S. & V. Co. v. Mann, 139 111. App. 652. Same — Issued by private xvarchousemen — Quasi-negotiable: — Warehouse receipts, issued by private agents, or by warehouse- men other than those described by the statute of this state as public warehousemen, are on the same footing as bills of ladmg ILLINOIS DECISIONS. 217 in respect of their (///a^/-negotiable character. Northrop ct al. V. First National Bank, 27 111. x\pp. 572; Western Union Ry. Co. V. Wagner et al.. 65 111. 197. Same — Receipts issued by factors: — \\here it appeared that a firm, which 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 these were not ware- house 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. Trumbull et al. v. Union Trust Co. et al., :^3 111. App. 319; afif'd 137 111. 146. Same — Recitals — Effect: — A warehouse receipt reading in part "Received in store one hundred thirty-nine bales \\'. Cotton waste, weighing 62,500 lbs. . . . The contents of trunks, boxes, parcels, barrels, baskets, etc., mentioned in this receipt being unknown are stored at owner's risk. ..." Held: that this clause must be given effect. That no warranty as to the contents of the bales could be implied from the language of the receipt, that such language is merely descriptive, and the warranty only extended to the numl^er of bales. An offer to return the identical bales received would be sufficient to discharge the liabilitv of defendant as warehouseman. The case was re- versed to permit the introduction of additional evidence. Union National Bank v. Grisivold, 141 111. App. 464. Same — Failure to state distinguishing marks as required by statute — Effect: — Where warehouse receii)ts 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 .\pril 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 property 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: — Par- ties delivered to a warehouseman a large quantity of wheat and at the same time delivered to him an instrument in which it was 21S ILLINOIS DIVISIONS. Stated tluit llio wheat was dcliNcrcd to llic warchousciuan free of all incumbraiu-c except that held hy the warehouseman, and that the latter was at lihert)- 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 hv the warehouseman should at once vest in the holder full title and ownership 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 warehouse receipt but was a sale liv wav of mortgage. Siiydackcr v. Blatchlcy ct al., 72 111. .\pp. 519. Aftirnied 177. TU. 506. Same — Receipt as collateral — Criminal action: — The owner of a grain warehouse having therein only his own grain, issued a warehouse receipt thereon and endorsed it to a bank as collateral security. Held: that the receipt having been endorsed and de- livered as collateral security, it was in legal elTect, an unrecorded and unacknowledged chattel mortgage, possession of the property remaining with the mortgagor, and that such an instrument comes within Sections 124 and 125, Ch. 38, Hurd's Rev. Statutes of 1905. Judgment of Criminal Court affirmed. McReynolds v. People, 230 111. 623, 637. Same— nil en a valid tender:— \Nhere, under a contract of sale of wheat, the seller tenders a warehouse receipt, this held to constitute a valid tender unless the purchaser objects thereto. Where the purchaser is absent, a mere readiness to tender ware- house receipt for the property cannot be construed to be a valid tender thereof. McPherson \. Gale, 40 111. 368; McPherson v. HalL 44 111. 264. Same — Interpretation — Execution a(jai)ist xvarehouseman: — 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 warehouse- man 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. ILLINOIS DECISIONS. 219 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 received 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 reasonable time, and, after notice to the owner, storage could be charged at a reason- able rate. Myers ct al. \. Walker, 31 111. 3S3; Same v. Same, 24 Til. 12.3. Same — Same — JJliere zvarelioiisemaii 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 selling 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 cir- cumstances, an execution cannot be validly issued against prop- erty stored in his warehouse in the name of his purchaser. Broad- ivell V. Hoivard et al., 77 111. 305. Same — Effect of transfer: — The transfer of the warehouse re- ceipt is not a symbolical delivery, it is a real delivery to the same extent as if the goods had been transported to another warehouse named by the pledgee. Union Trust Co. v. JJ'ilson. 19(S U. S. 530, 536. Same — Negotiability — Statute cojistrued : — Warehouse receipts are not negotial)le 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 fur- ther than its terms expressly declare, it was held that a negotiable instrument must be an absolute and unconditional ])romise to pay money or deliver property at a time that will certainly happen. It may be unknown in advance when it will transpire \)Ui it must be absolutely certain that it will ])c sometime. Al- though it may be in the power of the party to whom the promise is made to render it certain, by his subse(|uent act, this will not be sufficierU. It cannot be such a time as will depend upon his will or his pleasure. Under the statutes a warehouseman is not responsible for wheat destroyed by fire in the absence of negli- gence, nor is he pledged to redeliver unless llie receipt is piopcrly ~0 ILLINOIS DECISIONS. indorsed ami all the proper charges paid; il is. therefore, impos- sible to Unow, in achance, with absolute certainty, that the wareiioiiseman will ciwr be rc(|uirc(l to redeliver the wheat. It is precisely as if the promise were to redeliver upon condition that none of these things allowed as excuses for non-delivery should intervene, as well as all future conditions actually written in the receipt. It does not follow that, because the statute has made bills of lading and warehouse receipts negotiable by indorse- ment and deli\ery, that all the consequences of indorsement and delivery of bills and notes before maturity ensue, or are intended to result from such negotiation. Canadian Bank v. McCrea et al., 106 Til. 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; Mfg. Mercantile Co. v. Monarch Refrigerating Co., 169 111. App. 562. See also Northrop V. First Notio)ial Bank, 27 111. App. 527, and the cases there cited. Same — Sanie — Suit by assignee: — A warehouse receipt was duly indorsed to plaintifif, who received at the same time a cer- tificate 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 delivered to the original holder of the receipt. It was held under such con- ditions, that the assignee could maintain an action for this breach, and that, under the statutes of the state, warehouse receipts are made negotiable 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 transferring 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 recover back the pur- chase money paid by the former to the latter in the purchase of whiskey, the transfer of which was represented by warehouse receipts, it was held that the purchaser could look only to the warehouseman. In this case, it appeared that the defendant offered to prove that it was a custom, well known in the whiskey trade, that the seller of warehouse receipts was never looked to as the responsible party but that sole reliance was placed upon ILLINOIS DECISIONS. 221 Lhe warehouseman. It was held that such custom or usage should ha\ e been allowed to have been proved. Mida v. Geiss- man, 17 111. App. 207. Same — Bona fide holder, protected: — Plaintiff sold certain grain, represented by warehouse receipts, which were duly trans- ferred to the purchaser, and received his check in payment there- for. The purchaser threupon 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 purchaser 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 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. IVest et al., 20 111. App. 61. Same — Indorsement — Effect: — Indorsement and delivery of a warehouse receipt transfers the title to the stored property to the assignee and gives him a right of action for any breach of duty of which the warehouseman might be guilty respecting the goods while in the warehouse. Sargent v. Central Warehouse Co., 15 111. App. St^?). See also Union National Bank 1. (}riswold, 141 111. Ap)). 464. Same — Collateral security — Estoppel: — Where warehouse re- ceipts 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 such 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 re- moved and other goods substituted in their place. This fact not being known to the person holding the receipt as collateral it rlifl not affect the security, although the warehouseman violated lhe statute and committed a fraud against such party by allow- ing substitution f){ goods. Under the above facts, the receipt holder became entitled as against the bailor to an equitable Hen on the merchandise, such lien arising, if on no other, at least '-22 ILLINOIS JUliCiSlONS. upon the grouiu! o\ estoppel. Ifoffuian rt al . \. Sclioycr ct al., 14.^ 111. 5'\^: L'uion Trust Co. v. I'ntmbitU, 137 111. 14f). 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 iov hy the receipt for a valuable 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 purchase. Ilanchett v. Buckley et al.. 27 111. App. 159; Chicago Dock Co. v. Foster, 4S 111. 507 : JcKrtf v. Cook. SI 111. 266 ; O. 6' M. R. R. Co. v. Kerr, 40 111. 458. Same — Action by one holdinci as collateral security: — Where a person who held a warehouse receipt as collateral security brought an action in case against the warehouseman ; upon de- murrer to the declaration, in which it was alleged that the receipt was fraudulently issued, it was held that a person holding ware- house receipts could properly maintain such an action and that it was immaterial whether the loss to the plaintiff, 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 — IVarehouseman's obligation upon: — Persons holding grain receipts have only the obligation of the warehouseman for the i)roper 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 con- tract. The giving of the receipts creates no specific or general lien on the propertv of the warehouseman. Dole v. Olmstead. 36 111. 150; Same v. Same. 41 111. 344. Same — Fraudulent unless tliey truly represent the property in store: — A v^^arehouseman 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 known 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. l)y the act, ILLINOIS DECISIONS. 223 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. Tlie People. 127 111. 117. Same — Goods not in existence zvhen issued: — Where the evi- dence showed that a receipt, issued by one 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 acknowledg- ment, 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 ware- house receipt evidence in support of the claim, that it was under- stood 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 — Delivery without receipt — Action on receipt: — Where one, acting as agent for another, stores property with a ware- houseman, and has a receipt issued to him in his own name, ostensibly for his convenience in handling it as agent, which fact the warehouseman knew, and the warehouseman afterward de- livers the property to the real owner, without the receipt, such agent cannot, upon such receipt, recover against the warehouse- man. Gates V. Thede, 91 111. Apji. C^0?>. Same — Purpose of surrender to zvarehouseman — Erroneous in- struction: — In an action against a warehouseman, for the value of grain, where the i;)laintiff was not in the possession of the receipt, the court instructed the jury as follows: "If the jury l)elievc from the evidence that tiie warehouse receipt in evidence was not held by the plaint ifif at the time of the levy of the execu- tion, offered in e\idence. but had been surrendered to the ware- houseman prior to that time, then the plaintiff is not entitled to 224 ILLINOIS DECISIONS. anv of the property replevined. by reason of his once having helil such receipt." It was hrld that this instruction, when applied to the evidence tending to sliow that the receipt was surrendered for the purpose of securing the delivery of the grain, was clearly erroneous. Nelson et al. v. Mclntyre, 1 111. App. 603. Inquiries to zearcliousc cDif'Ioyres — ll'lu'ii ivarchouseman not liable — Improper instruefioii 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 porformance of his duties, that the plaintiff was injured by reason o( the defective condition of a trigger in a trapdoor through which grain was dumped into the bins in the warehouse. The court instructed the jury that, in this case, it would not be sufficient for the defendants simply to prove that they had pur- chased proper and safe m.achinery 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 question was defective and by reason thereof the alleged injury resulted, then the 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 zvarelioiise act are embraced in the title there- of, 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 warehouse- men 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 contended that this section of the warehouse act was repealed by sections 124 and 125 of the criminal code. The court held that the pro- visions of this section were not repugnant to the warehouse act ILLINOIS DECISIONS. 225 and. therefore, there was no repeal by implication. Sykes v. The People, \27 111. 117; Same v. Same, 132 111. 12. Public warehousemen — Statutes requiring license and pre- scribing rates of storage, constitutional: — The legislature of Illi- nois, 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 the defendant was indicted for the violation thereof, in that he conducted a public ware- house in the city of Chicago without 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 warehouseman for a long period prior to the enactment of said statute. The contention was made in his behalf that the act was unconstitutional and void, in that it de- prived 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 un- touched 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 warehousemen could demand, and placing them under bond that they could not violate its provisions. Munn 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 authorities are fully reviewed and the doctrine of Munn V. Illinois severely criticised and departed from ; see also note to People v. Budd, in New York decisions, this volume, j)age 675. Mixing of grain belonging to warehouseman xvith that of cus- tomers — Act unconstitutional: — The act of 1897, p. 300. attempt- ing to permit the keeper of a [)ublic warehouse to mix his grain with that of his customers and to issue and deal in warehouse receipts representing the mass of grain is unconstitutional. Hannah v. People, 198 111. 77, ')7 . 15 220 ILLINOIS DECISIONS. Taxation of f^ropiTly of decedents estates {)i safe deposit boxes —l.azv constitutional :--T\\c Act of June 14, 1909 (Hurd's Stats. 1909. p. 18''7). prohihitiny; a safe depo.sit company and all others having possession of securities or other property belonging to the estate of a tlccedent. from delivering same to any administrator, executor or other person without giving the prescribed notice to the State Treasurer and Attorney Cleneral, upon penalty of paving the inheritance tax which might accrue thereon with interest and $1,000 in addition, is valid and constitutional. Na- tional Safe Deposit Co. v. Stead, 250 111. 584. Aff'd by Sup. Ct. U. S. Ian. 5. 1914, No. 138 Oct. Term 1913, not yet reported. INDIANA LAWS. ^27 CHAPTER XIV 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 person or incorporated company desiring to keep any such public warehouse shall be entitled to do so upon receiving 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 bv the owner or owners of such warehouse, if natural persons, or, if owned by a corporation, by the president and secretarv thereof. Every warehouse receiving sucli permit shall continue. sul)ject to the provisions of this act, until the owner or owners thereof shall file in said auditor's office written notice, signed as aforesaid, that thev desire to renounce the character of public warehousemen; and such auditor shall keep a record of such permit and renouncement. Warehousemen not taking out such permit shall not be in any wise afifected by the provisions of this act. Burns Annotated Statutes 1908, sec. 10483. What classes "A" and "B" embrace: — Public warehouses of ckiss "\" shall embrace all warehouses, elevators or granaries in which grain is stored in Imlk, and in which the grain of dififer- ent owners is mixed together, or in which grain is stored in such a manner that the iflentity of ditterent lots or parcels cannot be accurately preserved : public warehouses of class "B" shall em- brace all other warehouses or places where property of any kind is stored for a consideration. Any corporation, company, indi- vidual or lessee, operating or conducting a public warehouse, >hall be deemed a ])ublic warehouseman. Where a permit has been heretofore obtained, or may hereafter be obtained under this act. to keep a ])ul)lir warehouse, such pirniit shall lie so con- strued as to have included and to include more than f such property. Id. sec. 10494. Receipts negotiable — Receipts of class "B": — Warehouse receipts for property stored in any class of public warehouses, as herein described, shall be negotiable and transferable by the indorsement of tlie 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 under a prior indorsement in blank. Every 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. No sale of grain in store, which is not evidenced or accompanied by a transfer of the warehouse re- ceipt given therefor, shall be valid as against the bona fide holder of such receipt. All warehouse receipts for property stored in public warehouses of class "B'' shall distinctly state, on their face, the brand or distinguishing mark on such property. Id. sec. 10495. Fraudulent receipts, or removing property, felony: — 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 fraudulent in character, either as to date, or as to 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 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, upoti conviction thereof, shall sufifer, 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. 10496. Appointment of grain inspectors: — ^There shall be ap- pointed, 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 INDIANA LAWS. "^^ circuit court may appoint such inspectors. Every inspector, be- fore entering upon the duties of his office, shall take an oath to faithfully and honestly perform his duty according to law. Where there are two or more such organizations in any city, the one whose members deal most exclusively with grain and produce shall make such appointment, and it shall provide for his com- pensation, 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. 10497. Duty of Inspectors — Compensation: — Inspectors appointed in pursuance of this act may classify and determine the grade to which any article of property submitted to his inspection be- longs, but where there is a board of trade, or other commercial organization in such county, such organization shall have the exclusive authority to fix the grade of property, defining what shall constitute grades numbers one, two. etc., the inspector de- termining only as to what grade the same belongs, and where there is no such organization in any county, then the grading and rates of compensation for inspection, adopted by such organi- zation in the city nearest to the point where such grain or other property is inspected, shall govern such inspector in his inspec- tion : Provided, That all grain in carloads, shipped over any rail- road, upon arriving at any city or town where there is a regu- larly appointed and qualified inspector or inspectors, duly ap- pointed and qualified under the provisions of this act, shall be insjKcted and graded by a duly authorized inspector, unless notice that such grain is not to be inspected shall have been given to the railroad company transporting such car, or to the ni- spector. before the arrival of such grain. The grain so arriving shall be inspected in the yards of the railroad company over whose railroad it shall arrive, and it shall be the duty of the railroad company to i)()st. in its yard office, the number and initials of such cars and the location of same, and to place the same, upon arrival, where they may be easily and conveniently insi)ected, and such inspector is hereby authorized to enter said car or cars at any time thereafter for the purpose of inspecting and grading such graiti : And, provided, further, That any grain destined to an elevator of class "A" may be inspected on the tracks of such elevators instead of in the yards of tlic railroad company. The provisions of this act shall not apply to grain 234 INDIANA LAWS. which is transported llirouLjh siicli city i>r [own l)y the railroads and which is not t(^ he stopped at such city or town for unload- inoj. liandlinsj. storinj:^. sale or re-consigning, unless the bill of lading of such grain hears upon the face thereof the notation "Hold for inspection." Id. sec. 104^8 as amended by Act ap- proved March 6. 1900. Sess. Laws. 1909, p. 319. Who are warehousemen: — Every person, firm, company, or corporation, receiving cotton, tobacco, pork, grain, corn, rye, oats, wheat, hemp, whiskey, coal, any kind of produce, wares, mer- chandise, commodity, or any other kind or descri])tion of personal property or thing whatever, in store, or undertaking to receive or take care of the same, with or wathout compensation or re- ward therefor, shall be deemed and be held a warehouseman. Burns' Annotated Statutes, 1908, sec. 10499. 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 re- ceived 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 acfion against said warehouseman. Id. sec. 10500. Receipts negotiable: — All receipts issued by any ware- houseman, as provided in this act, shall be negotiable and trans- ferable 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. 10501. Receipts given only for property stored: — No warehouse- man, or other person, shall issue any receipt or other voucher for any goods, wares, merchandise, product, 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. 10502. Fraudulent receipts forbidden: — No warehouseman or other person shall issue any receipt or voucher for any goods, wares, merchandise, produce, commodity, property, or other thing, of INDIANA LAWS. -^^ any description or character whatever, to any person, company, or corporation, as security for any money loaned, or for other indebtedness or indemnity, unless such goods, wares, merchan- dise, produce, commodity, property, or other thing, so receipted for, shall be, at the time of issuing such receipt or voucher, the property, without incumbrance, of said warehouseman; and if incumbered bv prior lien, tlicn the character, extent, and amount of that lien shall be fully set forth and explained in the receipt, and shall be actually in store and under the control of said ware- houseman at the time of giving such receipt or voucher. Id. sec. 10503. 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 afore- said, or any part thereof, shall be outstanding and uncancelled. Id. sec. 10.504. Not to sell receipted property: — No warehouseman or other person shall sell or incumber, ship, transfer, or in any manner remove beyond his immediate control any goods, wares, mer- chandise, produce, commodity, property or chattel for which a receipt or voucher shall have been given, without the written consent of the person holding and producing such receipt. Id. sec. 10505. Act extends to ganger's receipts: — The provisions of this act shall extend to ganger's receipts issued for distilled spirits which may be in the bonded warehouses of the distillers in the state of Indiana under the control of the revenue officers of the United States or under any law of the United States; and such receipts shall be transferable by indorsement as provided in sec- tion three of this act. Itl. sec. 10506. Penalty for cheating or swindling — Criminal and civil: — Any warehouseman or ])erson who shall willfully, knowingly, and purposely violate any of 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 imprisoned in the state prison for any determinate period not exceeding five years. Every person aggrieved by the violation 236 INDIANA LAWS. of any i)t the provisions of tliis act shall have and niainlain an action against the person, company, or corporation violating the same, to reco\ cr all daniages, immediate, consequent, and legal, which he may have sustained by reason of such violation as aforesaid, whether such ]-)erson may ha\-e been convicted crimi- nally or not. Id. sec. 10507. Receipt as collateral, how sold: — When any receipt or voucher shall have been issued, as pR)vided by this act, and used or pletlged 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. 10508. Sale of warehouse receipts: — That it shall be unlawful for any corporation, tirm or person, their agents or employes, to issue, sell, pledge, assign, or transfer in this state, any receipt, certificate or other written instrument purporting to be a ware- house receipt, or in the similitude 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 warehouse, public or private, in any other state, unless such receipt, certificate or other written instrument shall have been issued by the warehouseman operating such warehouse. Id. sec. 10509. False receipts, transfer. — It shall be unlawful for any cor- poration, firm or person, their agents or employes, to issue, sell, pledge, assign or transfer in this state any receipt, certificate or other written instrument for goods, wares or merchandise claimed to l)e stored or deposited, in any warehouse, public or private, in any other state, knowing that there is no such ware- house 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 report, certificate or other written instrument. Id. sec. 10510. Description in receipts: — It shall be unlawful for any cor- poration, firm or person, their agents or employes, to issue, sign, sell, pledge, assign or transfer, in this state, any receipt, certifi- INDIANA LAWS. 237 cate or other written instrument 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 warhouse, public or private, in any other state, unless such receipt, certificate or other written instrument shall plainly designate the number and location of such ware- house, 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 provisions of this section shall not apply to the issue, signing, sale, pledge, assignment or transfer of bona fide ware- house receipt issued by the warehouseman operating public or bonded warehouses in other states, according to the laws of the state wherein such warehouses may be located. Id. sec. 10511. Penalty for violating act: — Every corporation, firm or per- son, agent or employe, who shall knowingly violate any of the provisions of this act shall be deemed guilty of a misdemeanor, 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 ex- ceeding one year. Id. sec. 10512. Sale of receipts, recording statement: — 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 receii)ts or certificates, are hereby re- quired 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 person, firm or corporation, that such person, firm or corporation desires to own, keep or control a warehouse, elevator, crib or other place for the storage and keeping of grain, an accurate description of the place and lo- cality 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 tiie one making the declaration. ha\ing any interest in land or structure; such declaration shall be duly acknowledged and filed for record in the same manner as instruments for tiic conveyance of per- sonal property. Id. sec. 10513. 238 INDIANA LAWS. Certificates, sale, statement: — Any person, firm or corpora- tion owning, keeping or controlling any such elevator, ware- bouse, crib, or other place for the storage of grain, and who has filed the declaration as provided in section one hereof, may execute and issue bills, certificates ov 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 quan- titv thereof, and may sell, convey, assign, transfer, pledge or en- cumber said grain, or any part or (ptantity thereof. But such bill, certificate, or warehouse receipt shall have written or printed on it a statement that the person, firm or corporation is- suing 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 issue (d), 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 ])e 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 re- quired to have the same recorded or give notice to protect him- self against existing creditors or subsequent purchasers, as re- quired in other cases where property is left in the possession of the vendor, fd. sec. 10514. Record of receipts. — Every person, firm or corporation mak- ing the declaration and issuing receipts and certificates for grain, as herein contemplated, shall keej) a regular well-bound book, wherein shall be kept and entered at the date of issuance there- of, full account of each and every receipt or certificate, with the date of issuance, number, name or person, to whom issued, the quality and kind of grain covered by such : and such book shall be subject to the inspection and examination of each and every person holding any such receipt or certificate, his agent or at- torney. Any person wrongfully altering, changing or willfully destroy- insr anv such book shall, uijon conviclicm. be fined not exceeding one thousand dollars, and may be imprisoned in the county INDIANA LAWS. 239 jail not exceeding one year; and any person, firm or corpora- tion issuing any receipt or certificate, without entering and pre- serving in such book the required memorandum shall be fined, upon conviction, not to exceed one hundred dollars for each cer- tificate so issued and be liable for all damages sustained in con- sequence of such omissions. Id. sec. 10515. False receipts : — 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 wliich. any former receipt or receipts, cer- tificate or certificates, are outstanding, uncancelled, and valid and subsisting, shall, besides 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. 10615. Penalties: — Any person, firm or corporation owning, pos- sessing or controlling any elevator, warehouse, crib or other place for storing grain as provided in this act. who shall sell or remove, or knowingly permit to be remo\ed 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 re- move the same, shall be deemed guilty of grand larceny and pim- ished as provided by statute, and such grain so removed shall be deemed and regarded as stolen property and may be pursued and recovered or its value recovered by the owner and iiolder of said receipt or certificate. Id. sec. 10517. How formed:— Any number of persons may form them- selves into a corjioration for the purpose of constructing ware- houses in which to inspect, store and sell tobacco, by complying with the following requirements : They shall unite in articles of as.sociation. setting forlli the name which they assume, the place at which they propose to costruct ihc warehouse, the amount of capital stock, and the number of shares into which it is divided. The names and places of residence of the subscribers, and the amount of stock taken l)y each, shall l)e subscribed to said ar- ticles of association. Whenever the stock subscribed shall 240 INDIANA LAWS. ainouiil to iho sum of six ihousand dollars, copies of tlie articles of association shall he tiled in the office of the recorder of each count) ill which the warehouses are to he constructed, and from that lime it shall he a corporation and known hy the name as- sumed in its articles of association. /2h; Stevens v. Loxu, 2 Hill, 132. Same — Place of injury — Average price: — In an action for the recovery of the value of eggs injured while being in cold storage, the court instructed the jury as follows: "That plaintiff is, how- ever, entitled to recover the highest market price he could have obtained, at the time of the injury, for the goods, had the defend- ants fully performed their duty and properly preserved the goods during the time they were bound under their contract to keep them in storage." It was held that, aside from the obscurity of the phraseology of this instruction, it was erroneous, in so far as it stated to the jury that, in event of a finding for the plaintiff, 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 ha\e been estimated 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 tlie time affords the proper standard of the market value. Adams et al. v. Stdlivan, 110 Ind 8. P. Insurable interest — Grain commingled: — It appeared that the plaintiff's, commission merchants, engaged in buying and selling grain, in connection with tlu-ir l)usiness owned and conducted a grain elevator in the usual manner. Those who took receipts from the plaintiffs knew that their grain could never be distin- guished from the mass with which it was mingled, 'i'he plain- tiffs insured in ilieir own name, with the defendant, the grain stored to the full \alue 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 256 INDIANA DECISIONS. them for the anioutit of the loss. Baxter v. Hartford Fire Ins. Co.. \2 Fed. Rep. 481. Q. Warehouse receipt — Represe)itations: — Warehouse receipts represent as true, two very essential tilings : That the warehouse- man received the property mentioned in the receipts, as ware- houseman, and that it will be delivered only on the return of the certificate, properly indorsed. If the warehouseman allows the goods, represented by the receipts, to be withdrawn without the knowledge of the person, who had relied upon the representations in the receipts, he must bar the loss. Bahcock et al. v. Peoples' Savings Bank, 118 Tnd. 212. Same — Contract: — A warehouse receipt is a contract of bail- ment and parol evidence is not receivable to vary its terms. Ton- er et al. V. Citicens' State National Bank, 25 Ind. App. 29. Same — 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 evidence is not admissible. A receipt, however, may be so drawn as to constitute a contract, and in the interpretations or constructions of a contract established customs may be considered. Prihble v. Kent, 10 Ind. 325. Same — Construction — Commercial usage: — A receipt given by a warehouseman for wheat received may be construed by adopt- ing the meaning of its own terms as explained by commercial usage. Drudge v. Letter et al., 18 Ind. App. 694. Same — Delivery of constitutes delivery of property represented: — The delivery of a warehouse receipt is equivalent to a delivery of the property rei)resented thereby. Gibson v. Stevens, 3 How. 384. Same — Mining and manufacturing company cannot issue: — A corporation organized under the mining and manufacturing 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 zvarehouseman's ozvn debt — Knowl- edge — Public and private warehouseman: — A public warehouse- man has no power to issue warehouse receipts upon his own prop- INDIANA DECISIONS. 257 erty in his possession, and deliver the same as a pledge to secure an indebtedness. Parties dealing with a public warehouseman are held to know that he has no such power. If a private warehouseman has such power it is by virtue of section 8724, Burn's R. S. 1894. National Bank et al. v. Whitehead et al., 149 Ind. 560. Same — Same — Not a warehouse receipt: — Where a debtor who is not a warehouseman issue a receipt purporting to be a ware- house receipt, on property in his possession 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 is- sued 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 defendant warehouseman as security for the payment of indebtedness due the warehouseman from the per- son to whom the receipt was issued. The receipt was not in- dorsed to the plaintiff' but was simply delivered to him. Default being made in the payment 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 defaulted. 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 wlioni the receipt was issued was valid. Tile case was therefore reversed and remanded. Toner et al. v. Citizens' State National Hank. 25 fnd. App. 29. Same — Delivery of. goods ivithout surrender of receipt — Ware- houseman liable — Bona jidr holder protected: — The plaintiff, in good faith, loaned to a commission merchant $4,000, and accepted as security therefor a warehouse receipt issued by the defendant 17 ^5S INDIANA DECISIONS. lo the commission mercliaiit. in wiiich it stated that the flour rep- resented 1)\ the receipt was dcHverahle only upon the return thereof, inoperly indorsed, and on payment of charges and in- surance. Subsequently, and without plaintiff's knowledge, de- fendant allowed the commission merchant to remove the flour represented by the receipt. The court held that this constituted a conversion for which the defendant was liable to the plaintiff, Babcock ct al. v. Peoples' Saz'ings Bank, 118 Ind. 212. 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 contract, expressing the terms and conditions upon which the property is to be transported, it is to be regarded as merging all prior and contemporaneous agree- ments 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. IVilson et al., 119 Ind. 352; Indianapolis & C. R. R. Co. V. Remmy, 13 Ind. 518; Sno7v v. Indiana, etc, R. W. Co., 109 Ind. 422. IOWA LAWS. 259 CHAPTER XV IOWA LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Iowa. It was approved April 1, 1907, see Laws of Iowa, 32 G. A. 1907, Ch. 160, p. 157. and Supplement to the Code of Iowa, 1907, Title XV, Ch. 10a, p. 786; see also this volume p. 1. With the exception of the last two sections which are omitted, and in lieu of section 60 of the Uniform Warehouse Receipts Act, provision is made for the repeal of section 3129 of the code. Elevator or warehouse certificates: — All persons, firms or corporations engaged in owning or dealing in grains, seeds or other farm ])roducts ; 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 commodi- ties; who own or control the buildings wherein any such business is conducted, or such commodities stored, may issue elevator or warehouse certificates for any of such commodities actually on hand and in st6re. the property of the person, firm or corporation issuing such certificate, 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, warehouse, building or other place where the commodity therein described is stored, the date of the issu- ance 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 is- .sued 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, sec. 3122. 260 IOWA LAWS. Declaration: — Before any such person, firm or corporation is authorized to issue sncli 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 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 luiilding 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 interest 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 recorded in the chattel mortgage record, the party making such declaration to be treated as the vendor in indexing such declar- ation, 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 preceding 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 deliv- ered, it shall have the efifect of transferring to the holder there- of the title to the commodities therein described or enumerated, and shall be assignable by written indorsement thereon, signed by the lawful holder thereof, which shall transfer the title of commodities therein enumerated, 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, show- ing the date thereof, the number of each, the name of the party to whom issued, the quantities and kinds of commodities enum- erated therein, and the brands or other distinguishing marks thereon, if any, which book shall be open to the inspection of IOWA LAWS. 261 any person holding any of the certificates that may be outstanding and in force, or his agent or attorney ; and when any commodity enumerated in any such certificate is delivered to the holder thereof, or it in any other manner becomes inoperative, the fact and date of such delivery or other termination of such liability shall be entered in such register, in connection with the original entry of the issuance thereof. Id. sec. 3125. Property subject to certificate: — No person, firm or corpor- ation shall issue any elevator or warehouse certificate for any of the commodities enumerated in this chapter unless such prop- erty 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 warehouseman 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 outstand- ing and in force, nor shall any such commodities be by the ware- houseman .sold, incumbered, shipped, transferred or removed from the elevator, warehouse or other l)uilding 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 sim- ilar to above) construed: — A warehouse receipt issued to the proprietor of the warehouse 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 con- tains provisions similar to the above. Sexton & Abott v. Graham et al., 53 la. 181. Damages: — Any one injured by the violation of any of the provisions of this chapter may recover his actual damages sus- tained on account thereof, and if willfully done, in addition there- to, exemplary damages in any sum not exceeding double the ac- tual damages, which actual damages shall be found and returned by .special verdict. Code of Ta.. 1897, sec. 3127. Section 2175 of the Code of 1873 (containing provisions similar to above) construed: — In order to hold a warehouse- man liable for exemplary damages under the above section, it must be shown that he was guilty of a willful departure from his 262 IOWA LAWS. duties as a warehouseman and a mere failure to observe all the legal requirements in attempting U) enforce his right of sale is not sufticient. Jeffries v. Snyder, 110 la. 350. Penalties: — Any person who shall willfully alter or destroy anv register of 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 issu.- any certificate herein provided for when the commodity or com- modities therein enumerated are not in fact in the building or huiUlings it is certified they are in ; or shall, with intent to de- fraud, issue a second or other certificate for any such commodity, 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 out- standing and in force, sell, incumber, ship, transfer, or remove 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 conviction, be punished by fine not exceeding ten thousand dollars, or by imprisonment in the penitentiary not exceeding five years. Code of la., 1897. 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. Certificate as evidence — Lien : — All warehouse certificates or other evidences of the deposit of property, issued by any warehouseman, wharfinger or other person engaged in stor- ing property for others, shall be in the hands of the holder there- of presumptive evidence that the title to the property therein described is in the holder of such instrument. Such property shall remain in store until otherwise ordered by the holder of such certificate or other evidence of deposit, and shall not be removed by such warehouseman, or knowingly suffered to pass from his control, without the written consent of the de- positor or his assignee, and shall be subject to all just charges for storage thereof ; and such warehouseman or other depositary IOWA LAWS. 263 shall have a lien thereon for such charges and may retain pos- session thereof until thev are paid. Code of la., 1897, sec. 3129. Unclaimed property — Lien for charges: — Property trans- ported by, or stored or left with, any forwarding and commission merchant, express company, carrier or bailee for hire shall be subject to a lien for the lawful charges thereon for the transpor- tation 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 where- abouts is known, if not. he shall go before the nearest justice of the peace, and make an affidavit, stating the time and place where such property was received, the marks or brands by which the same is designated, if any, and. if not, then such other de- scription 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 l\v 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 in the estray book of the substance of the affidavit, and a statement when, where and by whom made. Id. sec. v3130. 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 com])lied 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. Jeffries v. Snyder, 110 la. 359. Sale — Notice: — If the pr(>])crty remains unclaimed and the charges unpaid, the pcrsdn in po.ssession. if tlic probable value does not exceed one hundred dollars, shall adverti.se the same 2G4 IOWA LAWS. for fcniiiecn da\s. hv posting luiticcs in li\c of tlic most pulilic places in the city or locality where said property is held, givinp; such description as will indicate what is to he sold; if the goods exceed the probable value of one hundred dollars, the length of notice shall be four weeks, and there shall be a publication there- of for the same length of time in some newspaper of general cir- culation in the locality where the property is held, if there be one. and. if not. then in the next nearest newspaper published in that neighborhood, at the end of which period, if the property is still unclaimed or charges unjpaid. it may be sold by him at public auction, between 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 continued from day to day, by public 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 ex- penses of the sale shall be paid, which sales shall be conducted after the manner of sheriffs' sales, and like costs taxed for like services. Code of la.. 1 la. 555; Arthur v. Chicago, R. I. & Par. Ry., 61 la. 648. But see Barner Bros. V. McCrea et al., 7? Ta. 267. 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. R. 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 l)urned. 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 Countx Mill & Elevator Co., 4,3 la. 146; Arthur v. Chicago, Rock Island & Pacific R\. Co.. 61 Ta. 648. 272 IOWA DF.CTSTONS. Sanir — Same — liffcct of stdtrniriit in rrcript "hoiiyht of," etc., "at ow)icr's risi: as to fire":-- In an action ai^ainsl a warehouse- man in whioli it was alleged lliat he was responsible for grain which had been destroyed by lire while stored with him, on the ground thai 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 lire, 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, 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 apjjears a sale was not con- templated by the parties. Irons v. Kentner, 51 la. 88. Same — Same — Continues a bailment ivhile stored — Mixing with other grain not conversion : — A warehouseman issued a re- ceipt as follow^s : "Received of C. C. Cowell for Thompson in store for account and risk C. C. Cowell, one hundred and eighty- three busshels 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 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 ware- houseman is not under obligation to retain the wheat of the depositor in his warehouse. He may, without breach of con- tract, and without being guilty of conversion, ship the wheat away on his own account. 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 v>'arehouseman assumes a liability which he can discharge only by payment in wheat of like quality and value, or in money. Nelson v. Broivn, Doty & Co., 44 Ta. 455. Same — Statute of limitations in case of: — In cases of bail- ment the statute of limitations does not commence to run until the bailee holds the property adversely to the claim of his bailor, IOWA DECISIONS. 273 that is, until there has been a conversion. Rcizenstein v. Mar- qiiardt, 75 la. 294. H. Unclaimed goods — Sale of — Statutory notice — Questions for the jury: — In an action for conversion against a warehouseman, the defendant 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 judg- ment for the value thereof and the defendant appealed. It is provided by the law that if the goods are of a greater value than one hundred dollars, a 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 tlTat 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." The plaintiff" contended that he was entitled to exemplary damage.^. It was held that no such damages should have been allowed. Verdict and judgment for plaintiff'. The case was modified and affirmed to the extent thai if the plaintiff would remit two hundred dollars from the amount of the judgment and 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 — // unauthorised constitutes conver- sion: — A warehouseman received from the i)lainliff' 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." Immediately upon the delivery of the grain to the warehouseman it was mingled wiili other grain therein stored and subsequently sold. The warehouse and con- tents were destroyed by lire. It was contended on behalf of the plaintiff that the transaction constituted a sale and that the ware- houseman was liable for the value of the grain. The defendant contended that as the e\idcnce showed Iir bad in >tore at tlie time of the lire mure wheat than that claimed by the phiintiff, 18 274 TOWA DECTSTONS. he was not liable as the contract was one of hailnient. The court held that under these circumstances it made no difference whether it were bailment or sale, that the mixture of the plaintilT's wheat with other wheat, without his authority, constituted a conversion and that defendant thereupon l)ecame absolutely liable for the value tliereof to the plaintiff. Dierksoii w The Cass County Mill & Elevator Co., 42 la. 38. But see Arthur v. Chicago, R. 1. & Pac. Ry. Co., 61 la. 648. Same — Ulthout authority of depositor — Does not constitute conversion: — In an action against 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 Jield that the mere fact of admixture of goods of the same quality does not divest the owner of his property, whether they acted with or without his knowledge. Arthur v. Chicago, R. I. ct- Pac. Ry. Co., 61 la. 648. Same — Separation by warehouseman: — Grain belonging to a warehouseman's several depositors, and some belonging to him- self, were mingled with the knowledge of all parties. The ware- houseman 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. Same — Substituted ownership — Instructions to jury: — Plain- tiff placed in defendant's grain elevator a certain quantity of No. 4 corn which defendant sold and shipped out. Thereafter the elevator and contents were destroyed by fire, when defendant had on hand sufficient corn of grade No. 3. Subsequently plain- tiff demanded payment of the corn at the then market price which was refused. In an action for the value of the corn it was held, where grain is stored with the understanding that it may be mixed with other grain of like quality and kind, and the warehouseman may buy and mix his own therewith, and ship and sell therefrom, the owner does not lose title to his propor- tionate share of the grain, even though the identity of the entire mass has changed. If more than stored remains, each may obtain the quantity deposited ; further held to be error not to instruct the jury, in effect, that, the fact that the grain was so mixed or the identical grain delivered had been shipped out and IOWA DECISIONS. 275 was replaced by other grain, and that none of the identical grain of plaintiff was in the elevator at the time it was destroyed by fire, confers no right of recovery upon the plaintiff by reason of the facts themselves. Backus v. Lazvbaugh, 86 N. W. 298. Q- 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 aft'ecting 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. Loive Bros. v. Young, 59 la. 364, following Fixlcy v. Boynton, 79 111. 3.51. Same— Negotiability—Scale tickets not zvarehouse receipts- Purchaser not protected:— Tht plaintiff purchased certain scale tickets from one who had deposited a quantity of wheat with the defendant warehouseman. Such depositor had been notified by the defendant to surrender the tickets and receive in lieu thereof warehouse receipts. He failed to do this, however, and sold the tickets to the plaintiff. Before such sale was made the defendant had sold the wheat and had appropriated the money received 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 was no statement there- on as to the number of bushels or grade of the wheat nor as to terms or conditions of storage. Cathcart v. Snoiv & Huber, 64 la. 584. Same— As collateral-Person to ivhom issued having no title to the fjoods—Bffect:—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 receii)t was invalid as against one who was the bona fide holder of the original valid receipt and that under 276 IOWA DECISIONS. sections 2171 and 2172 of the ("ode, tlie person to whom the wareiiousc receipt is issued nuisl he the owner of the goods represented therehy. Sc.vto}i & Abbott v. Graham ct al., 53 la. 181. Same — Parol evidence not reeei2>able to contradict or vary the terms thereof: — If warehouse receipts are regarded merely as receipts they may he exjilained by [)arol evidence and a contract existing between the parties ma)' be siiown by competent testi- mony. But if they are to be regarded as contracts, they cannot be explained or varied by oral evidence. \\'hile 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 cr Elevator Co., 43 la. 146; Lowe Bros. & Co. v. Young, 59 la. 364. Same — Evidence of oral agreement receii'able — 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 accord- ance 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 pro\e 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 jjroof 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 Johnson v. Browne, i7 la. 20. Hughes v. Stanley, 45 la. 622; Irons v. Kentner, 51 la. 8(S. R. Bill of lading — "Good order." effect o/.- -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 IOWA DECISIONS. 277 that the good order, etc.. referred only to the external condition and not to the state of the pork itself. JVest v. Steamboat Berlin, 3 la. 532; Mitchell v. U. S. Ex. Co., 46 la. 214. Same — Effect of assignment — Parol testimony: — An assign- ment 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 con- tract. 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; Heivett v. Chicago, B. & Q. Ry. Co., 63 la. 611 ; JVilde V. Merchants' Despatch T. Co., 47 la. 272; Chapin & Irish v. Chicago, M. & St. P. Ry. Co., 79 la. 582; Higley & Co. v. Bur- lington, C. R. & 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 thereof which was stored in the cars belong- ing to the defendant railroad company. The consignee directed the defendant to place the cars at a certain point designated by the plaintiff which it accordingly did. 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 this action. At the trial the court, on motion of the intervener, directed a verdict for it which was accordingly ren- dered. On appeal it was held tliat the placing of the cars by the defendant railroad company in the location designated by the consignee con.stituted a delivery to the plaintiff, and the liability of the defendant as carrier thereupon ceased. That the plaintiff then became the jnirchaser thereof and the subsequent assignment of the bill of lading to the intervenor could not deprive the plain- tiff of iiis title to the wheat. Anchor Mills Co. v. Burlington, C. R. & N. Ry. Co., 102 la. 262. 278 KANSAS LAWS. CHAPTER XVI KANSAS LAWS PERTAINING TO WAREHOUSEMEN The L'nifonn Warehouse Receipts Act is in force in Kansas. It was approved March 10, 1909, and took effect May 29, 1909, see Laws of Kans., 1909. Ch. 262, p. 629, also this volume p. 1. Grain inspection department: — That a department of record for the inspection and weighing of grain is hereby established to be called "the state grain inspection department.'' Said de- partment shall have full charge of the inspection and weighing of grain at all railroad terminals, public warehouses, or other points within the state wherever the business transacted will, by the fees provided by law, pay the salary of an assistant inspector and weighmaster, or wherever, upon request of parties interested, to the chief inspector, he may establish inspection and arrange that the officer in charge accept as full compensation for his services an amount equal to the whole revenue obtained at such a place. Gen'l Stats. Kans. 1909, Sec. 3327. Chief inspector: — It shall be the duty of the governor to ap- point 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 in- spector shall not, directly or indirectly, be interested in buying or selling 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. 3328. Duties of chief: — 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 the laws of the state ; to super- vise the handling, inspecting, weighing and storage of grain; to establish necessary rules and regulations therefor, and for the management of the public warehouses of the state, as such rules KANSAS LAWS. 279 and regulations may be necessary to enforce the provisions of this act or any law of this state in regard to the same; to keep proper records of all the inspecting and weighing done into and out of warehouses licensed by law to do business in this state, for which purpose he shall have provided books, blanks and other material needed in order to keep i)erfect and proper records. He shall investigate all complaints of fraud or oppression in the grain trade, and correct the same, so far as may be in his power. Id. Sec. 3329. 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 pre- scribing 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. 3330. Supervising inspectors; weighmasters ; assistants: — The chief inspector shall be authorized to recommend to the governor a suitable person as supervising inspector in each city, town or place in the state where one or more public warehouses may be doing business under the law. whose duty it shall be to visit daily the elevators and railroad tracks, sui)ervising all inspections, with a view to securing uniform inspection of grain. The chief in- spector shall be authorized to recommend to the governor a suit- able person as supervising weighmaster in each city, town or l)lacc in the state where one or more pul)lic warehouses may be doing business under the law, whose duty it shall be to visit daily the elevators and tracks, supervising all weighmasters. in- specting scales, and the loading and unloading of grain, with a view to securing correct weights on all grain weighed by the department. The chief inspector shall be authorized to recom- mend to the governor suitable and qualified persons as assistant inspectors or assistant weighmasters, to be acting inspectors or weighmasters. in the absence of tlie chief ins])ector, who shall not be interested in any public or prix.iic grain warehouse, or in the buying or selling of grain, either directly or indirectly, and -SO KANSAS LAWS. also such DtluM- (.'inploycs as ina_\- he necessary to properly conduct the business of his office; and the governor shall be authorized to make such appointments, if found liy him to be necessary. Id. Sec. 3331. Supervision: — All supervising inspectors, assistant inspec- tors and assistant weighmasters shall be under the supervision of the chief inspector, to whom they shall report in detail all the services performed by them at the close of each working-day ; such officers to take the same oath as the chief inspector, and each to execute a bond in the sum of five thousand dollars, with like conditions and to be approved in like manner as provided for the bond of the chief inspector. Suit may be brought upon the bonds of any of the bonded officers under this act in any court having jurisdiction thereof, in the county where the de- fendant resides, for the use of any person injured by the act of such officer. Id. Sec. 3332. Standard samples: — It shall be the duty of the chief in- spector 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 to do so by the proprietor, lessee or manager thereof, at the actual cost of such samples. Id. Sec. 3333. Fees: — The fees shall be as follows: For inspecting and sampling each car-load, forty cents ; for inspecting out of eleva- tors, thirty-five cents per car; for weighing into warehouses, mills or elevators, fifty cents per car; for weighing out grain that has been previously weighed by the state, where certificates are required. twenty-fi\e cents per car; for weighing out where no certificates are wanted, fifteen cents per car; Provided, When a public warehouseman is moving his own grain from one of his warehouses to another a fee of fifteen cents shall be charged for weighing in ; for reinspecting where the former inspection and grade are sustained, fifty cents per car; and in all cases where extra samples of car lots of grain inspected are demanded the charge for each sample be twenty-five cents : Provided, That whenever track scales are provided by the elevator or warehouse- man suitable for weighing all grain in car-load lots all grain delivered to any such elevator or warehouse shall be weighed by the state grain inspection department before the seal of the car in which it is loaded is broken ; and thereupon such grain shall KANSAS LAWS. 281 be tested, inspected, and graded ; and after the grain has been removed from such car, the car shall by the department be in- spected and again weighed by the department. The name and postoffice address of the consignor of such car, when the same are known to the department, shall within ten hours after in- specting such grain be mailed to the consignor, with a statement of the gross weight of such car-load of grain, the total net weight of such grain, the test weight per bushel, and the grade of such grain ; and for each car so inspected and weighed on such track scales so provided by the elevator or warehouseman, the fee for weighing into warehouse, mills or -elevators shall be twenty-five cents per car. Jd. Sec. ?>2)?>^. Charge a lien; — The charge for inspection and weighing of grain shall be and constitute a lien on the grain so inspected or weighed, and whenever 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 inspection or weighing. Id. Sec. 3335. Report of chief: — 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 by his department for the preceding month, setting forth the number of cars of grain inspected and weighed, and by whom, the number of samples furnished, the amount of reveiuie collected by him- self and the assistant inspectors and weighmasters ; and tiie chief inspector shall, at the time of filing his said rc])ort with the auditor of state, pay intcj the state treasury all money received as fees for the inspecting, weighing or sampling of grain for the preceding month, which money shall Ijc credited to the general fund. Id. Sec. 3336. First assistant; compensation of inspectors and office force; — In every city (jr at every railroad terminal in the state where more than one assistant inspector is employed, the chief in- spector shall designate one of the assistant inspectors to be known as first assistant inspector, whose duty it shall be to make and comjjile reports of his respective jurisdiction, and who shall collect the reports of the other assistants and forward the same to the chief inspector. Tlu' chid' inspector shall keep his ^M'wl- and place of business in the city of Kansas City, Kan., and shall receive 282 KANSAS LAWS. ail annual salary of cii^jhtccn lumdrccl tloUars, ])ayal)k' monthly, and shall he allowed all actual and necessary traveling expenses paid in cash while attending to his official duties; one supervising inspector shall rccei\e a salary of twelve hundred dollars per annum ; one supervising weighmaster. a salary of twelve hundred tlollars per annum; one chief clerk, a salary of twelve hundred dollars per annum ; one collector, a salary of nine hundred dollars per annum ; one stenographer, a salary of nine hundred dollars per annum ; one office clerk, a salary of seven hundred and twenty dollars per annum ; fourteen assistant inspectors, a salary of eighty-iive dollars per month each ; seventeen weighmasters, a salary of seventy-five dollars per month each ; ten helpers, a salary of sixty dollars per month each ; and one scale expert, who shall also act as seal clerk, at a salary of one thousand dollars per annum ; for contingent fund, twenty-five hundred dollars annually; such office force to hold at the pleasure of the chief inspector, and to be appointed by the governor, on his recom- mendation. All the salaries provided for in this section shall be paid monthly on verified vouchers approved by the chief in- spector. Id. Sec. 3337. Penalty for unlawful act: — Any duly authorized chief in- spector, assistant inspector or weighmaster of grain under this act who shall be guilty of neglect of duty, or who shall knowingly or carelessly inspect, grade or weigh any grain improperly, or who shall except (accept) any money or other valuable considera- tion, 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 conviction shall be fined in the sum of not less than five hundred dollars nor more than one thousand dollars, or shall be imprisoned 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 ofTense, such chief inspector, assistant in- spector or weighmaster shall forfeit his office. Id. Sec. 3338. Only duly appointed persons to act: — The inspection or weighing of grain in this state, whether into or out of public warehouses or 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 and qualified according to law, and any person KANSAS LAWS. 283 who shall act as inspector or weigher of grain who has not been thus first appointed and qualified shall be guilty of a misdemeanor. Id. Sec. 3339. Exclusive control: — The chief inspector and assistants and officers of the grain inspection department shall have exclusive control of the weighing and inspecting of grain in all places where inspection or weighing is or shall be established under this act ; the action and certificate of such officers shall be conclusive to all parties interested, unless appealed from as provided by law. Id. Sec. 3340. Bribery: — Any person, or any representative of a firm, trust, corporation, or association, who shall bribe or ofifer to bribe any of the officers created under this act shall be deemed guilty of a felony, and upon conviction shall be punished by confine- ment at hard labor in the penitentiary for a term not exceeding seven years. Id. Sec. 3341. Reinspection: — In case any owner, consignee or shipper of grain, or any warehouse manager, shall be aggrieved by the decision of any supervising or assistant inspector, a reinspection may be called for or 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 committee shall consist of experienced grain men, and their decision shall be final in the controversy: Provided, That the party appealing shall pay said committee a sum not to e.xcecd 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 apjjeal 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 grain inspection (lei)artment. /(/. .Sec. 3342. Sale by sample: — Nothing in this act shall be construed so as to prevent any person from selling grain by sample, regard- less 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 midcr the same system under which it was received into store. /(/. Sec. 3.343. 284 KANSAS LAWS. Duty of attorney-general and county attorney: — The attor- ney-general of the stale of Kansas shall he ex officio attorney for the ehief inspector, and shall gi\e him such counsel and advice as he may from time to time require, and said attorney- general shall institute and prosecute all suits which said chief inspector may deem expedient and proj)er to institute; and he shall render to said chief inspector all counsel, advice and assist- ance necessary to carry out the provisions of this act, according to the true meaning and intent thereof. In all criminal prosecu- tions against a warehouseman for a violation of any of the pro- visions of this act, it shall he the duty of the county attorney of the county in which sucii prosecution is hrtmght to prosecute the same to a hnal issue. Id. Sec. 3344. Public warehouses: — That all elevators or w^arehouses lo- cated 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, are hereby declared public warehouses. Id. Sec. 3345. Above section construed: — The title to grain stored as in the abve section provided is in the respective holders of the ware- house receipts, not in the warehouseman. Bryan v. Congdon, 54. Kan. 109. License to do business: — The proprietor, lessee or manager of any public warehouse shall be required, before transacting any business, to procure from the chief inspector a license to transact business as a public warehouseman, and shall make written appli- cation therefor, setting forth therein the name of such warehouse and the individual name of each person interested as owner or principal in the management of the same; or, if owned or man- aged by a corporation, the names of the president and secretary; and said license shall give authority to carry on ruid conduct the business of a public warehouse in accordance with the laws of the state, and shall be revocable by the chief inspector upon complaint in writing, setting forth the particular violation of the law, and upon due notice and hearing and sufficient proof. Gen'l Stats. Kans. 1909, Sec. 3346. Above section construed: — In a proceeding under the above statute to restrain an alleged improper exercise of power there- KANSAS LAWS. ^85 under, the state must be party plaintifif. Jones v. Board of Trade, 52 Kan. 95. Bond of licensee : — Any person, company or corporation re- ceiving a license as herein provided shall forthwith file with the secretary of state a bond to the state of Kansas, for the benefit of all persons interested, with sureties approved by the chief inspector, in the penal sum of not less than one thousand dollars nor more than fifty thousand dollars, in the discretion of such chief inspector, conditioned upon the faithful performance of duties as a public warehouse and full compliance with all the laws of this state in relation thereto. A fee of one dollar, for the filing of such bond, shall be paid to the secretary of state: Provided, When any person, company or corporation procures a license for more than one warehouse in any one county, but one bond shall be required. Gen'l Stats. Kans. 1909. Sec. 3347. Penalty, doing business v^ithout license: — Any person who siiall transact the business of a public warehouseman without first procuring a license and filing said bond as hereinbefore provided, or who shall continue to transact any such business after such license has been revoked (save only that he be per- mitted to deliver property previously stored in such warehouse), shall on conviction thereof be fined in the sum of not less than one hundred dollars nor more than five hundred dollars for each and every day such business is so carried on ; and the chief in- spector may refuse to renew any license or grant a new one to any person, company or corporation whose license has been re- voked, within one year from the time of such revocation. Id. Sec. 3348. Storage; special bin; charges paid: — It shall be the duty of every public warehouseman, whenever inspection and weighing is or shall be established, to receive for storage any grain, dry and suitable for warehousing, that may be tendered to him in the usual manner in which warehouses are accustomed to receive the same in the ordinary and usual course of business, not making any discrimination in the persons desiring to avail themselves of warehouse facilities; such grain to l)e in all cases inspected, weighed and graded by a duly authorized inspector and weigher (but to be stored with grain of a ?iimilar grade); but if the owner or consignee request, and the warehouseman consent there- 286 KANSAS LAWS. to. his grain of the same grade may be kept in a bin by itself apart from that of other owners, wliioh bin shall thereupon be markeil and known as a special bin. If a warehouse receipt be issued for grain so kejjt separate, it shall state on its face that it is a special bin, and shall state Ihe numl)er of such bin; and all grain delivered from such warehouse shall be inspected and weighed on its delivery i)y a duly authorized inspector and weigher of grain. Nothing in this section shall be construed to require the receipt of any kind of grain into a warehouse in which there is not suflicient room to accommodate or store it properly, or in cases where such warehouse is necessarily closed. The charge for inspection and weighing upon receipt and delivery shall be paid by the warehouseman and may be added to the charge of the storage. The chief inspector may recover such charges of the warehouseman by an appropriate action in his name. /(/. Sec. 3349. Warehouse receipt: — Upon the application of the owner or consignee of grain stored in any public warehouse, the same being accompanied with evidence that all transportation and other charges which may be a lien upon the grain, including the charge for freight, inspection, and weighing, have been paid, the ware- houseman shall issue to the person entitled to receive it a ware- house receipt therefor, subject to the order of the owner or con- signee of it, which receipt shall bear date corresponding with the recei]it of the grain in store, and it shall state upon its face the quantity and respective 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 repre- sented thereby 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. Id. Sec. 3350. Numbering; duplicate: — 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 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 on the re- ceipt, with the amount it contained; if from barges or other KANSAS LAWS. 287 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. 3351. Cancellation; issuance and division of receipts: — Upon the delivery of grain from store upon any receipt, such receipt shall be plainly marked across its face the word "cancelled," with the name of the person cancelling the same, and thereafter be void, and shall not again be put in circulation, nor shall grain be de- livered 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 quantity of grain than was contained in the lot or parcel so received, nor shall more than one 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 aggregate receipt for a par- ticular 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 store and the remainder 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 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 consoli- date two or more receipts into one, and the warehouseman con- sents thereto, the original receipt or receipts shall be cancelled the same as if the grain had been delivered from the store, and the new receipt or receipts shall express on their face that they are a j)art of another receipt or consolidation of other receipts, as the case may be. and the numl)er of the original receipt 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 jjermitted. All new receipts issued for old ones cancelled as herein provided shall bear the same date as those originally issucfi, as near as may be. Id. Sec. 3352. Limiting liability: — No warehouseman in this state shall insert in any recci])t issued by him any language in anywise limiting or modifying his liabilities or responsibility as imposed bv the laws of this slate. Id. Sec. 3353. 288 KANSAS LAWS. Delivery of property: — On the return of any warehouse receipt properly indorsed, and the tender of all proper charges upon the property represented by it, such property shall be imme- diately 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 forty-eight hours after such demand shall have been made and the cars or vessels for transportation of same shall have been furnished. The ware- houseman in default shall be liable to the owner of such receipt for damages occasioned by such default : Provided, No ware- houseman shall be held to be in default in delivering if the property 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 the same shall have been actually returned. Id. Sec. 3354. 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 chief inspector shall require, a statement concerning the condition and management of the business of such public warehouse. Id. Sec. 3355. Warehouseman post statement: furnish statements to in- spector: — The manager of every public warehouse, where in- spection and weighing are or shall be established, shall, on or before each Tuesday morning, cause to be made out, and shall keep posted up in the business office or (of) such warehouse in a conspicuous place, a statement of the amount of each kind of grain in store at his warehouse at the close of business on the previous Saturday, and shall on each Tuesday morning render a similar statement, under oath, by some one having knowledge of the facts, to the chief inspector. He shall also furnish daily to said chief inspector a statement of the amount of each kind and grade of grain received in store in such warehouse on the previous day for which receipts have been issued, and what ware- house receipts upon which the grain has been delivered on such day have been cancelled, giving the number of each receipt, and the amount, kind and grade of grain received and shipped upon each ; also, how much grain, if any, was so delivered and shipped, and the kind, for which warehouse receipts have not been issued, the aggregate of such reported cancellation and delivery of un- KANSAS LAWS. 289 receipted grain corresponding in amount, kind and grade with the amount so reported delivered and shipped. He shall also at the same time report what receipts, if any, have been cancelled and new ones issued in their stead, and shall furnish the chief in- spector any further information regarding the receipts issued or cancelled that may be necessary for him to keep a full and correct record of all receipts issued and cancelled and the grain received and delivered. Id. Sec. 3356. Examine property; testing 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 the ordinary business hours be at full liberty to examine any and all property stored in any public ware- house 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 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 public warehouses shall be subject to the examination and test by any duly authorized 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 proprietor if found incorrect. Any ware- houseman 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 herein- after provided. Id. Sec. 33.S7. Withhold grain; notice: — In case any owner or consignee of grain shall be dissatisfied with the inspection or grade 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 the i)ul)lic warehouse (whether the property may have previously been consigned to such ware- house 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 de- V.) 290 KANSAS LAWS. li\cro(l to him subject only to such proper charges as may be a Hen upon it prior to such notice ; the grain 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 com- pany having it in possessicMi : 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 conver- sion, 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 pro- prietor or manager of any public warehouse into which it would otherwise have been delivered, and if after such notice it be taken into store in such public warehouse, the proprietor or manager of such public warehouse shall be liable to the owner of such grain for double its market value. Id. Sec. 3358. Unlawful combination: — It shall be unlawful for any pro- prietor, 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 de- livered to any public warehouse for storage, or for any purpose contrary to the directions of the owner, his agent or consignee. Id. Sec. 3359. Schedule of rates for storage: — The owner, operator or manager of every public warehouse located in this state shall be required, during the first week in July of each year, to publish in one or more of the newspapers (daily, if there is such) pub- lished in the city or village in which such warehouse is situated a table or schedule of rates for the storage of grains in his ware- house 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 15th day of November and 15th of May following, not more than four cents a bushel. Id. Sec. 3360. Change condition of grain; fire; liability of warehouseman: — Any public warehouseman may, on the written request of the KANSAS LAWS. 291 owner of any grain stored in a private bin, upon the surrender of the receipt therefor. l)e 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. Nothing in this section, however, shall prevent any warehouseman from removing grain within his warehouse for its preservation or safe-keeping. Public warehousemen shall be held responsible for any loss or damage to property by fire while in his or their custody ; but no warehouseman shall be held liable for damage to grain by heating, if it can be shown that he had 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 ware- houseman 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 condition, or is becoming so, such warehouseman shall deliver grain or (of) {|uality ec|ual to that delivered to him, on all receipts as presented. 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 ])ower to preserve the same, he shall immedi- ately give notice to the owner, if known, and if not known, by [)ublic notice by advertising in a public newspaper in the city in which such warehouse is situated, and by posting a notice in the most ])ublic 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 grain, and the bin in which it is stored, and shall also state in such notice the receipts out- standing u])on 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 uncanceled, 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 enumeration of 292 KANSAS LAWS. receipts and tho identiticalicn ut ^raiii su tliscredited shall em- brace as near as may he as ^reat a (juantity of gva'm as is con- tained in such hins ; and such strain shall he delivered upon re- inrn and cancellation of snch receipts, and the unreceipted grain upon the request of the owner or person in charge thereof. Nothing herein contained shall he held to relieve the said ware- houseman from exercising proper care and \igilance in preserv- ing such grain after such ])uhlication of its condition, hut such grain shall he kepi separate and apart from all direct contact with other grain, and shall not he mixed with other grain while in store in such warehouse. Any warehouseman guilty of .any act or neglect the elTect of which is to depreciate property stored in the warehouse under his control shall he held responsihle therefor to the persc^n damaged thereby, and the bond of such warehouse- man shall be held for all damages occasioned thereby. Nothing in this section shall be construed so as to permit any warehouse- man to deli\er any grain stored in a sjjccial bin or by itself as pro- vided in this act to any but the cnvners of the lot, whether the same be re])resented by a warehouse receipt or otherwise. In case the grain declared out of condition as herein i)rovided for shall not be remo\ed from store by owner thereof within thirty days 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 ])ublic auction for account of said owner, by giving ten days' public notice by advertisement in a newspa])er (daily, if there is such ) i)ublishe(l in the city or town where such ware- house is located. /(/. sec. 3361. Grading commission: — It shall be the duty rjf the governor to appoint three suitable persons, t(j be known as the "Grain Grading Commission," of which not more than two shall be mem- bers of the dominant party, who shall, on or before the 1st day of August of each year, establish a grade for all kinds of grain bought or handled in the state, which shall be known as "Kan- sas grades.'' The Grain Grading Commission shall elect one of its members clerk, who^e duty it shall be to record its work, keep its books and other items of record. The Grain Grading Commission so appointed shall publish a notice in at leas: two agricultural and one grain-trade or milling journal of the state, for three consecutive insertions, of their intentions to meet for the irar])ose indicated in this act, so that interested persons or KANSAS LAWS. 293 associations may send representatives to consult and counsel with the Grain Grading Commission appointed to establish grades ; and the grades so established shall be published in two agricul- tural and one grain-trade paper of the state for three consecutive insertions. The compensation of each grain grading commis- sioner shall be one hundred dollars per annum, and mileage to and from commissioners' place of meeting while occupied with official duties, and that no member of the Board of Grain Inspec- tor (Inspection) Commission shall ride to or from any meeting of said board on a free railroad pass. The term of office of above mentioned commission shall be two years. Id. sec. 3362. Grade and weight on certificate: — Whenever cars of grain requiring inspection are so arranged ui)on the tracks that they are continuous and contiguous and not mingled on the same track with other cars, it shall be the duty of the officers of the grain inspection department, inspecting or weighing such grain. to show upon the certificate the grade and weight thereof, and also a record of the seal broken and applied, and also to note thereon any condition of leakage found in any car so inspected. Id. sec. 3363. Repeal: — Chapter 45b of the General Statutes of 1901 and chapter 325 and 326 of the Session Laws of 1903, and all acts or parts of acts inconsistent herewith, be and the same are hereby repealed. Id. sec : 3364. Weight furnished: — That any shipper of grain, which grain has been weighed by the grain inspection department of this state, may, on request in writing to the chief inspector and inclosing a stamp for reply, receive, and it shall be the duty of the chief inspector to furnish such shipper, free of charge, the weight of any such grain, by forwarding to him promptly a statement show- ing such weights : Proz'ided. That such written request shall set forth the number and initials of the cars, the weights of which are so desired. Id. sec. 3365. Certificates issued: — All persons, firms or corporations own- ing, manufacturing or dealing in flour, grains, mill products, seeds or other farm products, or engaged in the business of slaughter- ing cattle, sheep, or hogs, and dealing in the various products therefrom, or buying or selling butter, eggs, cheese, dressed poul- try, or any other merchandise, who dwn or control the structures wherein anv such business is conducterl or such commodities 294 KANSAS LAWS. storetl, may issue elevator or warehouse certificates or receipts for any such commodities actually on hand and in store, the property of such person, firm or corporation, and may, by the issue of such certificate, sell, sign (assign) incumber or pledge such commodities. Such certificates or recei[)ts shall contain the date of its (their) 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 described 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, firm or corporation issuing the same. Id. sec. 3427. Concerning the issuance of warehouse certificates: — Before any such person, lirm or corporation, except as hereinafter pro- vided, shall be authorized to issue such elevator or warehouse certificates or receipts, he or it, as the case may be, shall file in the ofiice of register of deeds of the county wherein such elevator, warehouse or other structure is situated a written dec- laration, which shall contain the name and place of residence or location of such person, firm or corporation, and state that he 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 there- of, and the name or names of any person other than the one mak- ing such declaration who has any interest in such elevator, ware- house, or structure, or in the land upon which it is situated. And it is further provided that where such person, firm or corpora- tion are residents of and located in this state and operate a line of elevators, warehouses, or other structures in different coun- ties w^hich they desire to bring under the provisions of this act, they shall file in the oftice of the register of deeds in the county wherein such person, firm or corporation resides, or is located and have their principal place of business, a written declaration which shall contain the name and place of residence or location and principal place of business of such person, firm or corpora- tion, and shall state that he or it designs keeping and controlling a line of elevators, warehouses or other structures for the storage and sale of commodities mentioned in the preceding section and shall contain an accurate description of such elevators, ware- KANSAS LAWS. 295 houses or other structures, the location thereof, and the name or names of any person other than the one making such declaration, who has any interest in such elevators, warehouses or other struc- tures or in the lands upon which they are situated, specifying particularly the same. Such declaration shall be signed and ac- knowledged by the party making the same before some officer authorized to take acknowledgments of deeds for said county. Act of March 8. 1911. Laws 1911. ch. 186, p. 315. Indorsement; transfer title: — Each certificate or receipt issued by any such person, firm or corporation under the provi- sions of this act shall have printed on the back thereof a state- ment that the party issuing the same has complied with the re- quirements of section 2 of this act, giving the book, page and name of the county where the record of such declaration may be found. When such certificate or receipt 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 thereafter be assignable and transferable by delivery, and such delivery shall transfer to any bona fide holder in due course the title to the commodities therein described and enumerated against all persons claiming title subsequent to the issuing and delivery of such certificates or receipts. Gcn'l. Stats. Kans. 1909. sec, 3429. Registration of certificates: — All certificates or receipts given under the provisions of this chapter shall be registered by the party issuing them in a book kept for the purpose, showing the date thereof, the number of each, the name of the party to whom issued, the quantities and kinds of commodities enumer- ated therein, and the brands or other distinguishing marks there- on, if any, which book shall be o])en to the inspection of any per- son holding any of the certificates or receipts that may be out- standing and in force, or his agent or attorney, and when an}^ commodity enumerated in any such certificate is delivered to the holder thereof, or it in any other manner becomes inoi)erative, the fact and date of such delivery or other termination of such liability shall be entered in such register, in connection with the original entry of the issuance thereof. Id. sec. 3430. Not issued, when: -No ])ers(:)n. tirm or corporation shall issue any clc\ator or warehouse certificates or receipts for any of the commodities mentioned in this chapter unless such prop- 296 KANSAS LAWS. erty is actually in the clowilor or warehouse or striu-ture men- tioiuni therein as the place where such coniniodity is stored, and it sliall remain there until (Otherwise ordered hy the lawful holder of such certificate or receipt, suhject only to the lien of the warehouseiuan thereon and his ri<^ht to enforce the same. No second certificate or receipt shall he issued for the same prop- erty or anv jiart thereof while any other or prior certificate is outstandinj; and in force, nor shall any such commodities he sold, incumhered. transferred or removed from such elevator, warehouse or other structure wherein the same was stored at the time such certificate or recei])t w^as issued hy the warehouse- man or anv agent or employe thereof without the written con- sent of the holder thereof indorsed thereon. Id. sec. 3431. Damages: — Any one injured l)y the violation of any of the provisions of this chapter may recover the actual damages sus- tained on account thereof. Id. sec. 3432. Acts unlawful; punishment: — Any person who shall will- fully alter or destroy any register or certificate or receipt pro- vided for in this chapter, or issue any receipt or certificate with- out entering or preserving in such book the registered memoran- dum; or who shall knowingly issue any certificate or receipt therein provided for, when the commodity or commodities there- in enumerated 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, a former valid certificate or receipt is outstanding and in force ; or shall, while any valid certificate or re- ceipt 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 receipt, or if any person knowingly receives any such property or helps to remove the same, he shall upon conviction be punished by fine not exceeding ten thousand dol- lars, or by imprisonment in the state prison not exceeding five years. Id. sec. 3433. Mingling grain: — Nothing in this act shall be construed as prohibiting or preventing warehousemen from mingling in com- mon bins grains or seeds, mill products, or any other merchan- KANSAS LAWS. 297 disc or product, of the same grade, and issuing certificates or receipts therefor, and drawing out and shipping said grain or seeds from said bins, provided that a sufficient quantity of such grains or seeds shall be retained and kept in said bins to repre- sent and satisfy all outstanding receipts or certificates. Id. sec. 3434. Act not affect: — Nothing in this act shall be construed to atifect, interfere with or impair any rights of issuing and negoti- ating warehouse receipts or certificates under any existing law or under any regulation of any chamber of commerce or board of trade within this state. Id. sec. 3435. Contract; warehouse receipts: — Any person who shall, as agent or employe of any person, firm or corporation, enter into an agreement, expressed or implied, by which it is stipulated that grain, seeds or hay shall not be shipped by the producer or local buyer unless accompanied with warehouse receipts or that the same shall in any manner be under the control of any warehouse- man or agent as a condition precedent to the marketing of said grain, all such agreements shall be deemed and are hereby de- clared unlawful and in restraint of trade, and the person enter- ing into such agreement or combination shall be deemed guilty of a misdeameanor. and upon conviction shall be fined in a sum not less than one thousand dollars and not more than five thou- sand dollars, or by imprisonment in the county jail not less than ninety days and not to exceed one year, or by both such fine and imprisonment, at the discretion of the court. Id. sec. 5179. Common carriers, etc.: — Any forwarding merchant, ware- house keeper, stage, express or railway company, hotel-keeper, carrier, or other bailee not hereinbefore named, having a lien ui)on goods which may have remained in store or in the posses- sion of such bailee for six months or more, may proceed to sell such goods, or so much thereof as may be necessary to pay the amount of the lien and expenses, according to the provisions of this act : Provided, That such .sale may be advertised and made by any carrier in any city of the first, second or third class through which its line runs, where in the judgment of such carrier the best price can be obtained fur the proi)erty to be sold. Id. sec. 4S10. Side-track to elevator or mill: — Any person, firm or cor- poration desircnis of erecting and operating or who has erected '•298 KANSAS LAWS. a g^rain elevator of not less than ten thousand bushels' storage capacity, or flourinf^^ mill of not less than fifty barrels per twenty- four hours, on lands adjacent to the right-of-way of any rail- road company in this state, at or in the immediate vicinity and not to exceed more than one-fourth of a mile of any regular way station of such railroad, shall have the right to demand of such railroad company that it designate the location of a side- track over its right-of-way from the site of said proposed ele- vator or flouring-mill which it will agree to construct and con- nect with a switch (or) with any side-track of such railroad at a point within a reasonable distance from such way station and from the site of said proposed elevator or mill, and that it desig- nate the terms and conditions upon which it will construct, main- tain and operate such side-track after the erection and completion of said elevator or mill. Id. sec. 7239. Demand: — The demand provided for in the first section of this act shall be in writing, shall designate the proposed location of said grain elevator or fiouring-mill. and shall be delivered to the station agent of the railroad company at the station in whose immediate vicinity such grain elevator or flouring-mill is proposed to be erected, or if the railroad company has no agent at such station, then the notice shall be delivered to its station agent lo- cated nearest to the place of the proposed erection of such ele- vator or mill. Id. sec. 7240. Deposit: — The demand hereinbefore provided for shall be accompanied by a deposit of twenty-five dollars, which shall be applied by the railroad company as a payment on the amount of the compensation to which it shall become entitled under the terms of this act, and wdiich shall be forfeited to the company in the e\ent of the failure of the party making such demand to erect a grain elevator or flouring-mill. Id. sec. 7241. Duty of Company: — It shall be the duty of the railroad com- pany upon whom the demand hereinbefore provided for shall be made, within thirty days thereafter, to place in the hands of its agent at the station when such demand is made a written designa- tion of the location of the side-track which it shall agree to con- struct in accordance with such demand and the terms and condi- tions upon which it will agree to construct, operate and maintain such side-track ; Provided, hozvever. The railroad shall not be re- quired to make such written designation in case it shall elect to KANSAS LAWS. 299 grant a permit to the party making such demand to erect an ele- vator or mill upon its right-of-way as hereinbefore provided for. Such written designation so deposited with the station agent shall be delivered by him to the party or parties who shall have previ- ously made the written demand hereinbefore provided for, on re- quest of such party or parties therefor. Id. sec. 7242. Construction and Repair: — It shall be the duty of the rail- road company, immediately after the elevator or mill referred to in the written demand hereinbefore provided for shall have been erected and the manner and terms and conditions on which the switch referred to in such demand shall be located, constructed, maintained and operated, shall have been agreed upon between the railroad company and the party or parties erecting such ele- vator or mill, or shall have been fixed by the board of railroad commissioners of this state, as provided for by .section 6 of this act, to construct such side-track and switch ; and such side-track and switch shall at all times be under the control and manage- ment of and be kept in repair and be operated by the railroad company constructing or owning the same, and used for the business of such grain elevator or flouring mill for whose use the same may have been constructed, upon such terms and con- ditions as may be agreed upon by the owner or owners of such elevator, warehouse, mill or manufactory and the railway com- pany building such side-track and switch, or. in case of failure to make such agreement, upon such terms and conditions as are imposed by the board of railroad commissioners, as provided in section 6 of this act. Id. sec. 7243. Differences, adjustment of: — In case the person or persons or corporation making tlie demand hereinbefore provided for and the railroad company of which the demand is made cannot agree upon the location of such side-track and switch, or upon the terms and conditions upon which the same shall be con- structed, maintained and operated, or in case the railroad com- pany shall fail to (k-jjosit its written designation with its sta- tion agent, or such station agent shall fail to deliver the same to the party or parties making request therefor, as provided by section 4 of this act, either party may apply to the board of railroad commissioners of this state, which is hereby authorized and required, after hearing tlie parties, to fix the location and the terms and conditions ujion which such raih-oad company sliall 1^00 KANSAS LAWS. be coini)ollc(l to locale, huilil, maintain and operate .such side- track and s\\ ilcli : and the decision of the hoard of railroad com- niis.sioners in relation thereto shall he accepted and received a.s an administrative order of said hoard of railroad commissioners, shall lu'ne the same lethal effect and he enforced as all other ad- ministrative orders of said hoard made juirsuant to paragraph 5998, General Statutes of Kansas of 1901. Id. sec. 7244. Company may designate location: — In case the railroad company shall elect so to do, it may, instead of making the desig- nation provided for in section 4 of this act, designate a suitable location on its right-of-way adjacent to one of its side-tracks at the station in whose vicinity the party or parties making a writ- ten demand as hereinbefore provided for shall desire to erect a grain elevator or fiouring-mill, at which it will permit the party making such demand to erect such elevator or mill ; such election shall be in writing, shall be delivered to the agent of the rail- road company, and by him on request therefor shall be by him delivered to the party or parties making the demand, in the same manner as provided by section 4 of this act for the delivery of a written designation of the location of a side-track to be con- structed in accordance with such demand. The written elec- tion so made and delivered shall constitute a binding contract on the part of the railroad company and the party or parties de- siring to erect such elevator or mill to permit the erection of such elevator or mill on its right-of-way at the place therein designated, provided such erection is commenced with sixty days from the date of such written notice of election, and the ele- vator or mill completed within a reasonable time thereafter. In case the railroad company and the party or parties erecting such elevator or mill are unable to agree upon the compensation to be paid to the railroad company for the privilege of erecting and maintaining the elevator or mill upon the railroad right-of-way, the amount of such compensation shall be fixed and determined on the request of either party by the board of railroad commis- sioners of this state, and an order of said board of railroad com- missioners in this regard shall have the same force and effect and be enforced in the same manner as an order fixing the com- pensation for the construction, maintenance and operation of a side-track, made under section 6 of this act. Id. sec. 7245. KANSAS LAWS. 301 Relating to fire protection in public buildings: — Every building now or hereafter used, in whole or in part, as a public building, public or private institution, business building, ware- house, grain elevator, office building, school house, church, thea- ter, public hall, place of assemblage or place of public resort, lodge room, boarding, lodging, tenement-house, apartment-house or rooming-house, three or more stories in height, shall, with- in sixty days after the taking effect of this act. be provided with one or more metallic ladders or stair fire-escapes attached to the outside wall thereof, and extending from or suitably near the ground to the uppermost story thereof, with platforms of such shape and size and in such proximity to one or more windows of each story above the first as to render access to such ladders or stairs from each such story easy and safe ; in all cases a metallic ladder, not less than eighteen inches between the sides, shall be made to extend from the topmost platform to at least three feet above the hre wall or roof ; the number, location, ma- terial and construction of such escapes to be subject to the ap- proval of the fire marshal, chief of the fire department, city or town marshal, or such other authority as may have the control of fire regulations in any city or town where such buildings are located; i)rovided. however, that all buildings more than two stories in height used for manufacturing purposes, dormitories, schools, seminaries, hospitals, offices or asylums, shall have at least one such fire-escape for every thirty persons or fractior thereof for which working, sleeping or living accommodations are provided above the second story of said l)uilding. if in the judgment of the fire marshal or chief of the fire department and the state superintendent of inspection, such number is necessary; provided, that in the case of all buildings having cement walls, floors, stairways, partitions and fire-proof roofs, the fire chief or fire marshal! shall designate and approve the number, kind, location, material and construction of fire escapes if in his judg- ment the same arc required, having due regard f(^r the inflam- mabihty of the nature of contents of said building and tlic nnmbcr of people emploved or residing therein, or occupying the same, in all cases of disjnite arising in the enforcement of the provi- sions of this chapter, the fire marshal or chief of the fire depart- ment if in his judgment he deems it necessary to refer such dis- puted matters arising in the enforcement of this chapter to the State superintendent of inspection, as provided in this act. whose 30'J KANSAS DECISIONS. decision in the matter shall ho liiial. Laws 1911. ch. 197, p. 334, .sec. 1. It shall be the duty of every proprietor, custodian, superintend- ent or person or persons having the charge and control of such buildings mentioned in this chapter to post notices under the direction of the tire marshal or chief of the fire department in rooms and halls or in public and conspicuous places in such building and designating the place on each and every floor of such building where such metallic ladders or fire-escapes are lo- cated and may be found. Id. sec. 2. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Substituted otvnership : — The defendant M received a certain quantity of plaintiff's wheat and issued warehouse re- ceipts as follows (omitting date, etc.) "Load of , test 56 lb. Price per bu. .48. Sold to Moses Bros. Grain Co." The words, "Stored at owners' risk of fire," were endorsed across the face subsequently. The elevator and contents were destroyed by fire and plaintiff refused to accept the injured grain and her share of the salvage, but sued for the entire amount of her wheat, al- leging value at .60 per bu. Held: The receipt recognized that the title to the wheat remained in the bailor ; that the contract was one of substituted ownership, wdierein as soon as the identical grain which has been deposited is disposed of by the warehouse- man, other grain of the same quality and quantity takes its ])lace. Judgment for plaintiff reversed. Moses v. Teetors, 64 Kan. 149. Bailment — Universal rule: — It is the universal law of bail- ments that where the bailment is for the benefit of both parties, the bailee is required to exercise 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. Same — Duty of ivareJiousenian — Question of zvhat constitutes due care, one for the jury: — When the owner of goods proves that he had entrusted them to a warehouseman, who was unable to return them because they had been burned, it then devolves upon the warehouseman to show that the loss did not occur through any want of care on his part A warehouseman is not KANSAS DECISIONS. 303 an insurer of goods received for storage, nor is he required to provide a building secure against all danger from outside risk. The law requires that he exercise due care and reasonable precau- tion to protect and preserve property placed in his custody; that is, such care as an ordinarily prudent person engaged in that busi- ness is in the habit of exercising toward property entrusted to him for safe keeping. He should store them in a building rea- sonably adequate and safe against danger from within, and ex- ercise due care to store them in a place where they will not be exposed to unusual hazards from without. Evidence considered. and held to be a question for the jury, whether the storage of goods in an iron sheeted wooden structure 14 inches from an old livery barn made of pine lumber, containing large quantities of hay, was due care. Judgment for plaintifif affirmed. Wiley V. Locke, 81 Kan. 143. B. Duty of warehouseman on receipt of consignment — Specific di- rections by a 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 warehouse- man must either refuse to accept the consignment, or comply in substance with the instruction of the consignor. Kansas Eleva- tor Co. V. Harris. 6 Kan. App. 89. Delivery — Must deliver zvitit 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 refu.sed to deliver, in this connection the court held that a person cannot, by promising to jierform his legal duty and failing to do so, avoid liability. .Viul that the defendant in this case was in no better position than if he had notified the plaintifif that he did not intend to comply with his demand. Up- on demand being made of a bailee, he must make delivery with- in a reasonable time thereafter. Id. Same — Place of: — It is the duty of a grain warehouseman to keep on hand the depositor's wiieat, or other wheat of like kind and quality. The warehouseman may refuse a demand to de- liver and the owner to receive, at any other place. McSherry v. Blanchficld, 68 Kan. 310. 304 KANSAS DKriSTONS. Bailee cainiot dispute hail(>r's title. -:\ bailee cannot set up title in himself to defeat the claim of his bailor. Tltompsoi v. Williams. M) Kan. 114. Coui'ersion — Evidence — Misjoiiuler of parties and of causes of oction: — The sex'eral parties plainlilT, l)roni;ht a joint action ae^ainst the defendant warehouseman and sheriff who had attached the grain deposited in the warehouse (in an action brought by a bank against the wareliousenian ). the bank l)eing also made a party defendant. Subsequent to the attachment, the warehouse- man issued an instrument to the several ])laintiffs in which it was stated chat tiie grain held for them did not belong to tiic ware- houseman although it had been attached in an action against him, it being further stated in such instrument that the warehouseiuan thereby sold to the several plaintiff's their pro rata interest in the grain remaining in the warehouse. It ap]jeared 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 al. v. JValker et al, 7 Kan. App. 748. Board of trade — Right of inspection of grain : — The Kansas City Board of Trade brought an action praying that an injunc- tion be granted against the Argentine Board of Trade and its officers, to restrain them from licensing inspectors of grain. It alleged that there were two warehouses in the vicinity of the de- fendant which were regularly inspected by dei)uty inspectors ap- pointed by the complainant. It was alleged in the answer that the defendant was duly incorporated and that its deputy in- spectors were appointed in compliance with the laws of the state and the rules of the grain insjiectors, which rules the com- plainant w^as and had been continually violating. The defendant prayed that the petition of the complainant be denied and further that the complainant be permanently 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 KANSAS DECISIONS. 305 the defendant's exercise and enjoyment of its exclusive rights to inspect grain in its immediate vicinity. The reply filed by the complainant denied the averments of the answer and in- sisted upon its right to inspect grain in tlie vicinity of Argen- tine. The case was suljmitted to the court on the pleadings, ex- cept 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 denied. 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 defend- ant could not assume the duties and responsibilities of the state and the public prosecutor of protecting public interests and secur- ing the punishment of warehousemen who violated the provisions of the statute. If the plaintiff' board and its officers were violat- ing the law, the state must interpose by an appropriate proceeding to prevent the unlawful exercise of the power. Jones v. Board of Trade of Kansas Cit\\ 52 Kan. 95. H. Storage charges — Tender necessary — Replevin: — Where the defendant Ijailee stated to a third party that he would not deliver 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 l)y the l)ailor 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 l)rought. Brown v. Holmes, 21 Kan. 687. I. Commingling of goods — // without authority constitutes con- version: — An instruction to the jury that if they found that the contract of the j)arties 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 qual- ity, constituted a conversion for wliich the warehouseman was liable, held to be correct. Kansas lilevator Co. v. Harris. 6 Kan. App. 89. Replevin — Disputed 07vnership — Warehouseman's proper course: — Goods taken under replevin proceedings between other 20 306 KANSAS nECTSTONS. parties were stored w illi defendant warehouseman by the sheriff. Phiintiff. tlio true owner, demanded the goods, and instituted proceedings to recover them. 1 1 was shown at the trial that de- fendant had shii)ped tlie goods to the phiintiff in the first re- plevin proceedings, after the institution of the present action. Held: That as defendant had the actual physical possession of the property, it was the privilege of plaintiff" to bring her action against them ; that as they did not disclaim, but filed a gen- eral denial and went to trial they cannot complain of being held responsible to plaintiff ; that they might have protected themselves l)y an oft'er under the statute, (Civ. Code sec. 42) to dispose of the property as the court might direct, Init by electing to deliver the property to one of the claimants, they assumed the risk of being held liable to the other. Judgment for plaintiff' affirmed. Peck V. Merchant Transfer & Storage Co., 85 Kan. 126. 128. M. Pledge — Bailee has no right to pledge to secure personal in- debtedness: — 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 pur- chased 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 shozvn: — A car- rier holding goods in capacity of warehouseman held not re- sponsible for loss occasioned by fire in the absence of negligence. L. L. &. G. R. R. Co. V. Maris, 16 Kan. 333; Union Pacific Rail- road Co. V. Mover, 40 Kan. 184; Kansas City, Ft. Scott & M. R. R. Co. V. Patten, 3 Kan. App. 338. N. Negligence — Placing goods in different building — Warehouse- man liable for loss: — Plaintiff stored his household goods with defendant warehouseman and evidence tended to show an agree- ment to store them in a certain brick Ijuilding. Instead, they were stored in an adjoining iron covered wooden structure, which was destroyed by fire from a stable adjoining. In an action for KANSAS DECISIONS. 307 the value of the goods destroyed it was held that placing the goods in a different building, which subjected them to a risk not contemplated by the parties, and wherein they were destroyed by fire, makes the defendant liable for the resulting loss. An agreement to keep property in a certain kind of a building is not satisfied by placing and keeping them in a dift'erent kind of a warehouse, especially one less secure than that agreed upon. JViley V. Locke, 81 Kan. 143, 146. Damage to goods — Both at fault— Cold storage: — Plaintiff stored with defendant a quantity of eggs which became tainted by the odor of the hard pine wood with which the cold storage room was lined. Neither plaintiff nor defendant were experi- enced in the matter of cold storage warehousing. Plaintiff fre- quently visited the warehouse and inspected the room contain- ing the eggs. Held: The facts and circumstances considered, that notwithstanding plaintiff's advertisement that its rooms were "free from taint." that the parties being equally negligent, no re- covery could be had. A bailor who knows the unfitness of the place of storage of goods provided by his bailee, or has equal op- portunity with the bailee of knowing it, who sees and inspects the place of storage, and. who. there being no latent defects in it. passes judgment upon it as a fit place for his purposes, will be deemed equally at fault with his bailee if damage results to the goods. Parker & Updegrajf v. Union Ice and Salt Co., 59 Kan. 626. O. Measure of damages: — Where corn, delivered by bailee to his bailor, is of inferior quality to that (lei)osited and the I)ailor ac- cepts the same, the measure of damages is the difference between the value of the corn delivered and that deposited. Kansas Eleva- tor Co. v. Harris. 6 Kan. App. sees. L^W-1403, issued by the secretary and nianagjcr of an elevator company, was pledged by liim as security for a jiersonal loan. The elevator company did not have any grain owned by said manager. Held: 'J'hat such receipts are ne- gotial)lc like bills of exchange and carry the title to the grain rep- resented ; that the rccoi])t was negotiable paper issued by the party authorized to issue such papers, was within the apparent scope of his authority ansuc.- any recei])t or voucher upon or for any goods, wares, mer- chandise, produce, commodity, property, or other thing, of any description or character whatever, to any person or corjjoration. 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 receipt or voucher, the property of the warehouseman and actually in store and under his control, and if there be a lien on the property, then the character and extent of the lien shall be fully set forth and ex])laincd in the rccci])l or voucher. Id. sec. 4772. 312 KENTUCKY LAWS. Duplicate receipts not to be issued: — No warehouseman or other person sliall issue any receipt or other voucher for any goods, wares. merchan(Use. proihice or otlier thing enumerated in section 4768 of this article, whilst any former receipt for any such goods, wares, merchandise, ]iro(luce, commodity, property or thing as aforesaid, or any ])art thereof, shall he outstanding and uncancelled. Id. sec. 4773. Property receipted for not to be sold or encumbered with- out consent: — No warehouseman or other person shall sell or encimiher. ship, transfer, or in any manner remove beyond his immediate control, any goods, wares, merchandise, produce, com- modity, property or chattel for which a receipt or voucher shall have been given, without the written consent of the person or persons 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 knowingly violate any of the provisions of this article shall he 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 impris- oned 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 jierson or corporation violating any of the provisions of this article to recover all damages, immediate, consequent, legal and extraordinary, 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. Receipts — pledgee may dispose of: — When any receipt or voucher shall have been issued as provided 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. 4776. Register to be kept by warehousemen — what it shall show: — Warehousemen shall keep a register, in which shall be re- KENTUCKY LAWS. ^^^ corded a list and description of all property which may be 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 twelve months after the same have become due. unless otherwise provided by contract, the warehouseman may sell such property, or enough thereof to ])ay the charge, at public auction, at the warehouse or at the court-house 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 adver- tised for not less than twenty days before the day of the sale, by printed notices posted at the door of the court-house of the countv. 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 circulation in the county where the warehouse is situ- ated. Such notice shall contain the day and place of sale, a de- scription of the property to be sold, if known; if not. a descrip- tion 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 warehouseman, 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 description 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 notice of said sale, amount due him, if his i)lacc of residence be known; and at any time within twelve months after such sale, upon the demand of the owner, the ware- houseman shall pay the same to liiin. All such sums which may be in the hands of the warehouseman, not claimed by the owner for twelve months after such sale, shall be paid into the state treasurv. which shall be held for a period of two years, subject to the order of the owner or iiis rci)rcsentatives. upon his or their making satisfactorv proof of the rightful ownership of same. Id. sec. 4779. 314 KENTUCKY LAWS. Common law liability can not be restricted:— It shall be un- lawful iov llu- (nviiors, operators or controllers of any ware- house of the kind herein contemplated to make any contract re- stricting: or limiting their common law liability for goods stored. Id. sec. 4780. Oil Warehouses — Establishment of: — That cotton seed oil niav be received and stored by the owner of any oil warehouse, and warehouse receipts may be issued therefor, as herein pro- vided ; the owners of such warehouse shall, before transacting business, obtain a license and give bond as provided for by sec- tions 4782 and 4783 of the Kentucky Statutes in the case of grain warehouses, such bond to be in the penal sum of twenty-five thousand ($25,000) dollars. Id. sec. 4780a sub. sec. 1. Duty of warehouseman: — The warehouseman shall provide tanks for the storage of such oil, and may store in the same tanks various lots of oil of the same grade and quality, and issue warehouse receipts therefor, but oils of different grade or qual- ity shall not be mixed together, nor shall the warehouseman at- tempt to deliver oil of one grade or quality for another. Id. sub. sec. 2. What receipts must show: — On application of the owner or consignee of oil stored in any licensed warehouse hereby au- thorized, the warehouseman shall issue to the persons entitled thereto a warehouse receipt therefore, subject to the order of the owner or consignee, which receipt shall bear date correspond- ing with the receipt of the oil into store, and shall state upon its face the quantity and inspected grade of the oil, and that the oil mentioned has been received in store, to be received and storec' with other oil of like kind and grade and that it is deliverable upon the return of the receipt, properly endorsed by the persor or corporation to whose order it was issued and the payment of the proper charge for storage. Id. sub. sec. 3. All receipts numbered, and no two same number: — All warehouse receipts for oil issued from the same warehouse shall be consecutively numbered and no two receipts shall bear the same number, 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 receipt, and shall be plainly marked on its face "duplicate.'' Id. sub. sec. 4. KENTUCKY LAWS. 3l5 When warehouseman to cancel receipts: — On delivery of oil from store against receipts, such receipts shall be plainly- marked by the warehouseman, across its face, with the word "Cancelled," and the same shall thereafter be void and shall not again be put in circulation. Id. sub sec. 5. Receipts not to issue until oil delivered — Division or con- solidation of receipts : — No warehouse receipt shall issue, ex- cept on the actual delivery of oil into store in the warehouse from which it purports to be issued, and which it is to be repre- sented by the receipt, not for a greater quantity of oil than was received. Where a part of the oil represented by the receipt is delivered out of store, a new receipt may be issued for the remain- der, but it shall bear the same date as the original and show on its face that it is the balance of the original number, and the re- ceipt 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 must show on their face that they have proceeded from such division, or consolidation, together with the numbers and dates of the old receipts. Id. sub. sec. 6. Oil must be in store to represent receipts issued : — Every warehouseman doing business under this act shall at all times have in store in his tanks an amount of merchantable oil equal in quality, quantity and grade to the amounts called for by its outstanding receipts, and every warehouseman wilfully failing so to do shall be liable on his bond to any person or persons, corpor- ation or corporations, for all damage sustained by such failure. Id. sub. sec. 7. Record of oil and receipts: — The warehouseman shall, in i book provided for that purpose, show the amount, grade and quality of oil on hand, and the amount of receipts outstanding, which book shall be open at all times to the inspection of any holder of such receipt. Id. sub. sec. 8. Penalties: — Any warehouseman wilfully failing or refusing to coniply with section seven of this act shall be deemed guilty of a felony, and shall be conlined in the penitentiary for not less than one nor more than five years. Id. sub. sec. 9. Statutes applicable: — The provisions of section 4768, \.o and including section 47X0 of chapter 133 of the Kentucky Stat- :^16 KENTUCKY LAWS. utes, arc liorchy made ai)plical)k- lo oil warehouses, and oil ware- housemen shall perform the duties and he subject, as other ware- housemen, to the penalties in said section provided. Id. sub. sec. 10. Public granaries, elevators, warehouses — Defined: — Public grain elevators, warehouses and granaries in this Commonwealth shall embrace those in which grain is stored, inspected, classified and sold. Id. sec. 47S1. License procured from county clerk — Revocation of: — The proprietor, lessee or manager of any public grain warehouse 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, setting forth the location and name of such warehouse, and the name of each person inter- ested 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 revokable 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 satisfactory 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, conditioned for the faithful performance of his duty as a public grain ware- houseman, and his compliance with the laws relating thereto. Suit may be brought on such bond by any person injured 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 under its charter for the purpose of tax- ation. Any one transacting the business of a warehouseman without first procuring a license, as herein provided, or continu- ing such business after such license is revoked (except by de- KENTUCKY LAWS. 317 livering property previously stored), shall be fined, on convic- tion, 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 re- voked. Id. sec. 4784. Grain — 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 dis- crimination between persons, such grain in all cases to be in- spected and graded by a duly authorized inspector, 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 dififerent 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 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 cases where the ware- house is necessarily closed. Id. sec. 4785. Receipts issued for grain — Form of: — On application of the owner or consignee of grain stored in such a warehouse, and the charges of inspection being paid, the warehouseman 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 recei])t 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 and of about the same time of receipt, and that it is deliverable upon the return of the receipt, properly endorsed by the person 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 consecutively 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 "Du- plicate." I f the receipt was received from railroad cars, the number of each car shall be stated upon the receipt, with the 318 KENTUCKY LAWS. amount it coiUaincd ; if from slcamboat or other vessel, the name of the craft : if by teams or by other means, the manner of its receipt shall ])c stated. On delivery of grain from store against receipt, such receipt shall be plainly marked across its face with iho 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 actually delivered — Division or consolidation of receipts: — No warehouse receipt shall is- sue, except on the actual delivery of grain into store in the ware- house from which it purports 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. ^^'hen it is desired to divide one receipt or to consolidate two or more into one, this may be done with the warehouseman's con- sent, and the original receipts may be cancelled ; but the new ones must show on their face that they have proceeded from such division or consolidation, together with the numbers and dates of the old receipts. 7c?. sec. 4787. Receipt not to affect legal liability: — No grain warehouse- man can, by any proviso in the receipt or in any otherwise, re- strict the liability put upon him by law. Id. sec. 4788. Grain to be delivered upon presentation of receipt. — Pen- alty: — Upon presentation of the receipt, properly endorsed, 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 pre- KENTUCKY LAWS. 319 ceding Saturday, and shall furnish daily to a registrar of ware- houses, hereinafter provided for. if there be one appointed for the city or county in which the warehouse is situated, a state- ment of all the receipts and deliveries and of the issual and can- cellation of receipts of the day, together with any other informa- tion that may be needed for keeping a true and faithful record of the state of the warehouse. If there be no registrar, he 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 Commissioner of Ag- riculture shall appoint an inspector, weigher and registrar for the warehouses in the city, and fix 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 inspec- tion ; but any warehouseman, seller or buyer, or other person in interest, may, on summary complaint 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 reap- pointment, 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 warehouse, shall be appointed inspector, weigher or registrar, nor shall any inspector, weigher or regis- trar have stored or offer for sale, in any warehouse under his supervision, any commodity owned by him or in which he is di- rectly 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 in- spector, 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 j^receding his a])pointment. Id. sec. 4791. Rates and charges to be posted semi-annually: — Every such warehouseman shall, l>efore receiving any grain on store and thereafter within the first week of every January and July, pub- '^-(^ KENTUCKY LAWS. lish his rates of storag^c and charijos for receipts and deliveries, by postinj^' tlicin in his oflicc and in the rooms of the board of trade, if tlicro bo any in a oily 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. 4792. Inspector and weigher — When appointed by fiscal court — Qualifications — Bond — Fees — Term of office: — In all cities and counties where there are grain warehouses, 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 ware- houses, who shall tile 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 ins])ector and weigher, on which suit may be brought by any person injured by the vio- lation of such duty. Said inspector and weigher shall have the inspection and weighing of all commodities stored in said ware- houses. The fiscal court of the county shall fix the fees of said inspector and weigher, which shall be ])aid by the seller. No person interested in any warehouse shall be appointed an in- spector, weigher or registrar ; nor shall any inspector, weigher or registrar have stored or offered for sale in any warehouse un- der his supervision any commodity 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 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 successor is appointed and qualified. Id. Sec. 4793. Fire or injury to grain — When warehouseman 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, provided reasonable care be exercised to protect and preserve the same, nor for loss or damage by heat- ing, 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 KENTUCKY LAWS. 321 warehouseman, as nearly as possible, to deliver out grain of each 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 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 the 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 outstand- ing 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 repre- sented 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 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 cancella- tion 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 exercising proper care and vigilance in preserving such grain after publication of its condition; l)Ut 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 ware- house. Any warehouseman guilty of any act of neglect, the efifect of which is to depreciate property stored in the ware- house 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 declared out of condition, as herein provided for. shall not be removed from store by the owner thereof within two months fn.iii tlu- date of the notice of its being out of con- dition, it shall be lawful for the warehouseman where the grain 21 ^22 KENTUCKY LAWS. is stored to sell the same at public auction, for account of said owner, hy i^iving ten days' i)u1)lic notice in a daily newspaper of Louis\ ille. or of the county where the warehouse is situated, if there he one. hi. Sec. 4794. Grain of different qualities not to be mixed: — It shall not be lawful for any public warehouseman to mix any grain of differ- ent 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 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 \vas 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 preservation 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 in- spector of grain, and any person who shall improperly influence any inspector of grain in the performance of his duties as such inspector, shall be deemed guilty of a misdemeanor and, on con- viction, 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 be posted: — All proprietors or man- agers of ])ul)lic grain warehouses shall keep posted up at all times, in a conspicuous place in their business offices, and in KENTUCKY LAWS. 323 each of their warehouses, a printed copy of this act. Id. Sec. 4797. Combination to control or interfere with bidding unlawful: — That it shall be unlawful for any tobacco warehousemen, cor- poration or individuals to combine together, by any rule, by-law or otherwise, for the purpose of controlling, or in any way inter- fering with, the free and unrestricted right to bid on or to pur- chase leaf tobacco offered for sale at public auction at any warehouse or place of sale where tobacco is sold by such ware- housemen for others in this Commonwealth. Id. Sec. 4810. Grading — Giving notice thereof: — That any corporation, company, partnership, or individual engaged in the business of warehousemen for the purpose of receiving, grading, handling, prizing and storing tobacco, shall, upon the receipt of such tobacco grade it into distinct and proper grades, and weigh same ; and shall give warehouse receipt therefor to the owner or consignor thereof, setting forth each grade and the number of pounds thereof; and after so doing said corporation, company, partnership or individual shall have the right to commingle all tobacco, so received into like grades and types. Act March 25. 1908, Sess. Laws, 1908, p. 60, Sec. 1. Warehouse receipts issued: — All warehouse receipts so is- sued shall be consecutively numbered, shall have the name of the owner or consignor written therein, shall bear date upon the same date such tobacco is so received by such warehouse- men, shall have written therein the character and amount of lien. or mortgage, if any, upon tobacco so received, and the name of the person holding said lien or mortgage ; and such receipt shall be signed by the proper officer of the corporation, company, partnership or individual. If such receipt be lost or destroyed, it shall be the duty of the warehousemen to is.sue the owner an- other receipt, and mark across or upon the face thereof the word "duplicate." Id. Sec. 2. All warehouse receipts so issued by any corporation, com- pany, partnership or individual, engaged in the business as above set forth, shall be negotiable and transferable by endorsement in blank or by special endorsement, and with like liability as bills of exchange now are. and with like remedy thereon. And it is i)rovided that any of such warehousemen may in such re- ceipts agree and bind themselves to pay the person rightfully ^24 KENTUCKY DECISIONS. holdinj;- iho same and culilkHl thereto the \ahie of the property described therein, in the event of loss or damage from any cause while in the possession oi snch warehousemen. Act March 25. 1^)08. Sess. Laws, 1908. as amended by Act api)roved March 4, 1010, Sess. Laws 1910. p. 1, Sec. 3. Tt shall lie the duty of such warehousemen to have some person or persons competent to grade such tobacco into pro])er grades and to weigh same in proper manner. Act March 25, 1908. Sess. Laws, 1908, p. 61, Sec. 4. Nothing herein shall be deemed to be in conflict with the laws of this Commonwealth, governing grain and tobacco warehouse- men, where tobacco is received and stored for sale. Id. Sec. 5. This act, on account of the emergency that exists, for the proper relief of the handling of the 1907 crop, shall l)e in effect from and after the date of its passage. Id. Sec. 6. 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 bail- ment. Ferguson. Jr., Assignee, v. Northern Bank of Kentucky, 14 Bush. 555; Moss v. Meshew, 8 Bush. 187; Netvcomh, Bu- chanan & Co. V. Caball, 10 Bush. 460; May v. Hoaglan, 9 Bush. 171; Crazvford v. Smith, 7 Dana 59; .Jcnings 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. JVhite, 6 Bush 251. Bailment — Not insurer — Warehouseman's right to have prop- erty removed — Charges: — A grain owner stored his wheat with a w-arehouseman in a separate bin at a specified rate per month. The warehouseman discovered v/eevil in other wheat and re- quested the owner to remove hi'; wheat. Later weevil was dis- covered in this wheat and the owner was again notified, but refused to remove his Avheat Afterward the warehouseman KENTUCKY DECISIONS. 326 ran out the wheat. Held: that a warehouseman is not an insurer. That he is only bound to use ordinary care to protect property and is not responsible for injury which cannot be guarded against by ordinary care. That when the warehouse became infected with weevil the warehouseman had the right to close it, and, upon reasonable notice, to require all wheat to be removed, and if not removed by the owner, to add to the storage charges the reasonable cost of removing. Carley v. Offutt & Blackburn, 124 S. W. 280. Ordinary care — Liability for goods stolen: — Nine hundred bar- rels of salt were stored and two hundred and forty of them stolen at ten different times during a period extending over a month. Held the warehouseman was liable, not having used ordinary diligence to preserve the salt. Chenozvith & Co. v. Dickinson & Shrezvsberry, 8 B. M. 156. Damages against zvarehouseman for violation of zvarehouse law — Res judicata :-^The plaintiff' bank jjrought an action against the defendant on his note which he had issued to one M., a ware- houseman, 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 de- fenses were substantially allowed by the lower court with the exception 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 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 tiled 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 326 KENTUCKY DECISIONS. Ikivo controlled ihc action oi the jury by instructions under these statutes. Had the court refused to do so, M. would have had his right of ai)i)cal. The very facts attempted to he ]nit in issue by the amended answer and counterclaim in the equity suit had already been put in issue in the common-law action, and were either tried out before the jury or should have been. MurrcU v. Citizen's Saz'ings Bank, 19 K. L. R. 693. JVarelwusonan's bond — That business constituted a monopoly no 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 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 appeal 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 relieve them of their liability as prin- cipal and sureties on the bond. That before the order of sus- pension 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 b\ 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 legisla- KENTUCKY DECISIONS. 327 tive power o\er them for the public welfare. \\'arehousemen have assumed a (7 z?>^, affirming 135 Fed. 172. H. Storage charges — Paid tzvice — IVarehouseman liable — Ware- house receipt: — If a warehouseman issue a receipt in which it is provided that the storage charges are to be paid when the goods are delivered, whereas in fact 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 liable to the original bailor for the amount paid by him. Atherton v. Bonnie Bros., 9 K. L. R. 107. Same — Not recoverable unless services performed: — Tobacco associations made agreements with farmers to handle all their tobacco which associations arranged for the prizing of the to- bacco, its storage and sale. It was customary for the warehouse- men to make advances to the farmers upon notes endorsed by the i)rizer. The business was interrupted by the discovery of the dishonesty of a member of the firm prizing the tobacco and which firm had endorsed the notes of farmers representing loans made by the warehouseman. The warehouseman sued the firm on the notes and also claimed the fees for the storage and sale of the tobacco. Held, the plaintiff was entitled to recover on the notes but not for the warehouse fees as it had not received the tobacco in store nor sold the same. ]V. H. Carsev & Co. v. Szvan and James, 150 S. W. 534. Lien — Superiority of pledgee's lieu: — .\ warehouseman ha\ ing notice as to who was the real owner of the tol^acco stored with him. sold the same as the tobacco of the person to whom the same was pledged. It appeared ihat the owner had agreed with the warehou.seman that the latter should sell the lobacco for him. In an action between the warehouseman and the pledgee for the purchase price, it was held that the contention of the warehouseman that he was entitled to deduct from such sum the amount which he had j)aid to the owner under the contract to ship the goods to liini for sale could not be sustained, the lien of the pledgee being superior to tliat of the warehouseman. Hare. McLeod & Co. v. Kelly, 11 K. i.. K, 309. Same — None for other debts: — Neither the custody of the warehouseman nor the pledge of whiskey by delivery of the 330 KENTUCKY DECISIONS. \vareliouse receipts gi\cs tlic warehouseman or pledgee, any gen- eral Hen 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 ivhile holding that a factor has no right to pledge the goods of his principal have nevertheless allowed the amounts sought to be recovered of the innocent pledgee of the factor, to be reduced by the sums justly due from the principal to his factor. First National Bank v. Boyce, 78 Ky. 42. Same — By bill of lading: — Property may be pledged by the transfer and delivery of the bill of lading representing same. Petitt & Co. V. First National 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 remains in the pledgor. Id. N. Loss by fire — Diligence — Effect thereon of appointment of government storekeeper: — The appointment by the Internal Rev- enue 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 required to exercise to prevent fire from being communicated to their houses or to the goods in their custody. Macklin v. Fracier, 9 Bush, 3. KENTUCKY DECISIONS. 331 Same — Failure to remove goods: — Where a fire occurred at night and warehouseman failed to remove plaintiff's whiskey, al- though 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 pro- vision of the law only when the destruction of the whiskey was inevitable. Id. Misdelivery — Liable for conversions — In regard to delivery, the warehouseman is obliged to deliver to his bailor or in accord- ance with his order. Any other disposition of the goods intrusted to him constitutes a conversion. Jefferson R. R. Company v. IVhite, 6 Bush. 251. Satne — Same — JVareJiotisemon must take precaution to see he is dealing with true owner: — Plaintiff shipped two hogsheads of tobacco consigned to herself as M. L. Irvin, at a certain ware- house. During transportation the name of the warehouse was altered to that of defendant warehouseman and upon arrival, a stranger representing himself as plaintiff, procured defendant warehouseman to take possession of, receipt for. and sell the tobacco and pay to him the proceeds. Action for its value by the owner against the warehouseman selling the property. Held: that warehousemen were not only responsible for losses which arise by their neglect, but also for losses occasioned by innocent mistakes of themselves and their servants in making a delivery of the goods to a peison not entitled to them. That having taken possession of property belonging to M. T,. Irvin. it was their duty to see that the proceeds were paid to her or to some person authorized by her; that instead they had paid the proceeds to an entire stranger without the exercise of ordinary precaution to identify him as the party entitled to receive tiiem. Judgment for defendant reversed. Irvin v. Phelps & Co., 20 Ky. L. R. 242. Same — Same — Same — Lien: — One N rented to D certain land and as rental was to receive one-half of the tobacco raised there- on. D removed all the tobacco and stored it with defendant warehouseman. Action by N to recover value of his share and also for sums he advanced. Held: that I) could not wrongfully take the tojjaccfj from N's possession and place it in possession of defendant so as to create any lien u])()n il superior to N'.s 332 KENTUCKY DECISIONS. right in it. or to deprive him of the right to have possession re- stored to him. Brozvrt v. Noel, 21 Ky. L. R. 648. 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, escape his liability for any loss or damage due to his negligence. Bridtvell V. Moore, 8 K. L. R. 535. Loss of property by collapse of building — Verdict of jury to stand — No salvage zvhen cost of redistillation exceeds value of whiskey: — Certain whiskey was destroyed by reason of the col- lapse of defendant's warehouse and of that saved, the cost of redistillation, required by the Federal Government, was largely in excess of the value of the whiskey saved. Held: that as the testimony as to the condition of the building and negligence of defendant were very conflicting and it having been properly sub- mitted to a jury w-hich found for the defendant, the verdict would not be disturbed. Also held that as the cost of .redistilla- tion was largely in excess of the value of the whiskey after re- distillation, plaintifT was not entitled to .salvage. Mill Creek Distilling Co. v. Pleasure Ridge Park Distilling Co.. 22 Ky. L. R. 998. Burden of proof — Negligence: — With certain exceptions such as those in cases of common carrier and innkeeper, 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 cer- tain 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. Brid- well V. Moore, 8 K. L. R. 535. 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. N czvcomb-Buchanan Co. v. Baskett, 77 Ky. 663. Insurance— Notice of /o.y.f.-— Warehousemen had a large quan- tity of tobacco in store, upon which they carried open policies of KENTUCKY DECISIONS. 333 insurance. After destruction by fire they notified the owner of one of the hogsheads to advise them of the value thereof. The warehouseman received no reply to the notification and settled with the insurance company as best he could under the circumstances. It was held that this action was conclusive on the owner of the hogshead and that she could not be heard to complain afterwards. Burks v. Sawyer, Wallace & Co., UK. L. R. 762. 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 in- structions from his depositor not to insure the tobacco. This is conclusive upon the warehouseman and exonerates him from liability for failure to insure. Cottrcll v. Branin, B. & C. 14 K. L. R. 580; JVestern Dist. Warehouse Co. v. Hayes, 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 ])oIicy. does not work a forfeiture thereof but such proof must be made before the beginning of the action upon the policy of insurance. Dtvellmg House Insurance Co. \. Ereeman, 12 K. L. R. 894. Q- Warehouse receipt — As contract: — A warehouse receipt recit- ing the agreement between the parties is more than an ordinary receipt and in the absence of mutual mistake or fraud or want of consideration, must be treated as a contract fixing the rights of the parties as to the matter to which it relates. Offutt & Blackburn v. Doyle, \22 S. W. l.=^6. Same— Right to issue— Estoppel:— A jury was instructed to the effect that they 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 this was error, as an authorization to sell carried with it the necessary authority to issue a wareho.use receipt for the goods sold. Al- though section 7 of the warehouse Laws of 1869 requires a written permission from the holder of the first receipt, before the warehouseman can issue a second one. the act did not apply to the case above. Where the holder of the first receipt had 334 KENTIHKV DFXISIONS. already itistructod the warehouseman to sell the j^oods, he would he estopped to deny that the warehouseman had authority to sell Aud eonsetiuently the authority to issue the receipt. That the purposes of the al)o\e act are for the prevention of fraud ami 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 & Stayg, 7S Ky. 475 ; Taylor v. Farmer, 81 Ky. 458. Satne — For his ozvn goods: — A warehouseman may issue a re- ceipt for his own goods stored in his warehouse. But ware- housemen can assert no claim against such goods unless it be shown upon the warehouse receipt. Greenbaum Bros. & Co. v. Megibhen, 10 Bush, 419; Cochran & Fulton v. Ripley, Hardie & Co., 13 Bush, 495; Ferguson, Jr., Assignee, v. Northern 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 description of the property it represents, and which shall be designated by some mark." It was held that the usual or known trade-mark of a iirm, 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 — IVhat the receipt must contain: — A warehouse receipt for goods for which the pur- chase price has not been paid need not contain a statement as to the amount of the unpaid 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. Greenbaum, 12 K. L. R. 423. Same — Negotiability: — Warehouse receipts, when issued by the warehouseman, are negotiable at common law and are put upon the footing of bills of exchange, with like remedies thereon by the statute. There is nothing in the statute which limits their negotiable character to transactions had in this KENTUCKY DECISIONS. 335 state with citizens thereof. Farmer v. Etheridge, 24 Ky. L. R. 649. Same — Same — Jl'hat a holder thereof takes: — Although ware- house receipts are made negotiable by the law of this state, the holder of a receipt takes no better title, and stands in no better attitude than if lue 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 negotiability serves only to ward off any defense which the warehouse keepers may have. First National Bank of Louisville v. Boyce, 78 Ky. 42; Greeiibaum Bros. & Co. v. Megibben, 10 Bush, 419. Same — Same — Indorser's liability — IJ'arehoiise receipts are negotiable and transferable by indorsement: — The indorser's liability is the same as that of one who indorses bills of exchange. Cochran & Fulton v. Ripley, Hardie & Co., 13 Bush, 495; Green- batim Bros. & Co. v. Megibben, 10 Bush, 419; Ferguson, Jr., Assignee, v. Northern Bank of Kentucky, 14 Bush, 555; Green- batim V. Burns, 13 K. L. R. 267. Same — Negotiability — Innocent holder protected: — A ware- houseman sold whiskey and accepted the purchaser's note in pay- ment therefor and then issued to the purchaser a warehouse re- ceipt, 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 gave such receipt as collateral security for the payment of the debt. In an action, by the one who loaned the money to the purchaser, against the warehouse- man, it was held that the whiskey should be sold, applying the proceeds first to the plaintiff's debt and the l)alance, if any, to the warehouseman for the payment of the debt due iiini, from the purchaser, on the purchase price and storage charges. Green- baum Bros. & Co. v. Megibben, 10 Bush, 419. Same — Same — Same — Absence of notice of advancements: — Where in good faith, money is advanced to a member of a firm upon warehouse receipts held by him for tobacco stored with the firm, and the warehouse receipts are used as collateral security for the payment of a loan, the title and constructive possession of the tobacco ])assed to the holders of tin.- receipts. As no notice of a ])rior adwincement by the firm to the owner of the tobacco was noted on the receipts, a claim for such advances is 336 KENTUCKY DECISIONS. subordinate io that dI" the lioUlcr of the receii)ts. Farmer v. Ethridyr, 24 Ky. 1.. U. ()49. Same— Defense /o.— Practically the only defense that can be made to a negotiable warehouse receipt in the hands of a third party is that such holder and the original purchaser were in collusion to defraud the warehouseman. Evidence examined and held not to sustain a defense of fraud. Early Times Distill- ing Co. V. Earle, 21 Ky. L. R. 1709. Same — Same — Facts not constituting notice: — One B pur- chased a quantity of whiskey, and endorsed his acceptance of drafts payable in ninety days for the price. The warehouse re- ceipts for the whiskey were delivered to him and he for a valu- able consideration sold them to a third party for less than the whiskey cost him. representing that he had immediate use for the money to meet his obligations. Upon B failing to meet the drafts the whiskey was attached. Held: that the title to the whiskey passed to the holder of the receipts; that as the purchaser of the receipts neither knew of B's insolvency, nor that he had not paid for the whiskey, and that under the circumstances selling the whiskey for less than cost was not sufficient to put him on notice. That mere inadequacy of price is not sufficient to call for the interposition of a court of equity and the application of part of the proceeds of the receipts to a pre-existing debt due the purchaser of the receipts did not invalidate the transaction. Theis v. Canmann & Co., 22 Ky. L. R. 1097. 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 afifect 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 un- paid: — A warehouseman who was also a wholesale liquor dealer sold a large quantity of whiskey to D., and took in payment therefor D.'s accepted draft due in thirty days. At the time of KENTUCKY DECISIONS. 337 the acceptance of the draft the warehouseman delivered to D. 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 plaintiff was entitled to recover, that the warehouseman having issued and given currency to the nego- tiable 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 advan- tage 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 Woll. W. (U. S.) 96. Same — As collateral — Goods not in zvarehouse — Bona fide holder: — A warehouseman issued receipts as collateral security to one who had made a loan to him. At the time of this trans- action the goods represented by the receipts were not in the ware- house. When the loan came due the same was renewed 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 liad violated the statutes in the first instance i)y issuing receipts when goods represented thereby were not in his possession, this would not deprive the lender of his rights oi a hone fide holder without notice, since the second receipts which he held were not in violation of the statutes. Further, that the extension of the loan was a sufficient con- 22 338 KENTUCKY DECISIONS. sideraticMi for the issuance of the new receipts. Cochran & Fulton V. Riplry. llardic ii oi the distillers to comply with the seven year requirement as \o shrinkage. It was held the resolution mentioned was not hindincj upon appellee whose rights and liabilities were defined in an unambiguous written contract and that it was manifest by tlie jirovisions of such contract that appellee's liability was limited by the terms of the receipts to losses from shrinkage occurring only during the period of four years. IJ'afhcii v. /\'v. Disfillrrirs and ]Varchouse Co., 140 Ky. 417. Samc^Liability: — The assets of the warehouseman in the hands of his assignee may be reached by the holder of an in- effectual warehouse receipt issued by the warehouseman, but such assignee is not personally liable therefor. Ferguson, Jr., As- signee, V. Northern Bank of Kentucky, 14 Bush 555. Same — Duplicate of: — A firm of distillers having decided to issue new green receipts for old yellow ones, placed in the hands of their financial 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 re- ceipts title to the whiskey represented by the returned yellow re- ceipts and this so even though the returned yellow receipts were immediately pledged l:)y 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 of facts as set forth above where the person to whom the original yellow receipts were pledged does not deliver all of the same upon pay- ment of the note, it was held that the evidence would not sustain the contention that he held such receipts as bailee of the ware- houseman, but that it would be presumed that he retained them as collateral security for the payment of other indebtedness due him by the warehouseman. Further, that the contention that no liability on the part of the warehouseman existed on account of green receipts, until all of the yellow receipts were surren- dered and cancelled could not be sustained, and that the ware- KENTUCKY DECISIONS. 341 houseman 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 occa- siond by issue of duplicate receipts by warehouseman. Held correct. Litpe 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 constitutes, according to principle and authority, actual fraud which cannot be avoided by declaration of honest motives. Taylor v. Farmer, 81 Ky. 458, Farmer v. Gregory & Stagg, 78 Ky. 475. Same — On machinery used in business: — A manufacturing corporation purchased machinery and other property for use in its business, and issued warehouse receipts for same. Held: That the receipts were null and void and did not create a valid lien under section 4768. Bell & Coggeshall Co. v. Ky. Glass Works Co.. 106 Ky. 7, 23. Same — Sale of property not covered by, a conversion: — A bank loaned money to a company, taking as collateral certain ware- house receipts. Later by authority of the borrower to sell the property represented by the receipts, the bank took possession of it, as well as of certain other property not mentioned in the receipts, and sold all the same on account of the indebtedness. Held, That the bank was liable for value of the property sold not embraced in the receipts. Kirkpatrick's Exr. v. Rehkoph Sad- dlery Co., 144 Ky. 129. Same — Taxation — Goods out of state: — In a suit to recover back taxes upon certain whiskey, it appeared that the whiskey had been shipped to Clermany where it remained until portions of it were reshipped to the U. S. for sale, and that while the whiskey was in Germany the warehouse receipts there issued for it were used by the defendant as collateral security. Held: That a tax upon the warehouse receipts was in effect a duty upon the article itself; and as the goods were exempt from taxation, that the warehouse receipt could not be taxed as representing the goods. Selliger v. Commonwealth of Kentucky, 213 U. S. 200. Same — F.videuce of issuance — Entries on stubs not sufficient to prove ownership of receipts: — Warehouse receipts when proper- 342 KENTUCKY DECTSTONS. 1)- ihawn arc not only negotiable at coiiimoti law, hut are ex- pressly niailo SI) hy statute, and arc i)lacc(l upon a footing v/itli i)ills of cxcliange. Bona lulo holders for valuahle consideration and without notice of facts which impeach their validity between antecedent parties, hold a jicrfcct title, and may recover the whiskey or its value at any time upon proper demand. The en- tries on the stubs of a warehouse receipt book, whilst competent to show the issuance of such a receipt, is not sufficient to estab- lish ownership of the warehouse receipt in plaintiff five years after the date when it purported to have been issued. Louisville & Nashville R. R. Co. v. Idelman, 22 Ky. T.. R. 306. R. Bill of lading — Negotiability: — A bill of lading does not pos- sess the characteristics of bills of exchange or other negotiable instruments placed on the footing of bills of exchange. The pe- culiar characteristics of these instruments rest entirely upon stat- ute or commercial usage sanctioned by express consent. A bill of 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 negoti- able, it is only meant that its true owner may transfer it by in- dorsement, or assigiunent. so as to vest the legal title in the in- dorsee. Douglas, Receiver, v. Peoples' Bank of Ky., 86 Ky. 176; Pollaud v. Vinton, 105 U. S. 7. S. Bond — Removal of JVarehouse — Resampling charges valid: — Laws of Tennessee pertaining to warehousemen considered and held, when a warehouseman gives the required bond and after- wards moves his warehouse, he is not required to take the oath anew and execute a new bond. That each of a number of ware- housemen have the right to designate the same person as their deputy, and that the fee of $2 charged for resampling or resell- ing is not prohibited by statute and is not an extortion. Bailey et. al. v. Wood et al., 114 Ky. 27. U. Taxation: — "Storage accounts" of a whiskey distillery are sub- ject to taxation. Commomvcalth v. Ky. D. & IV. Co., 143 Ky. 314. KENTUCKY DECISIONS. 343 Same — Property in zvarehonscs liable to: — Personal property in the possession of a warehouseman is liable to taxation as such under sections 4020. 4023, and 4260 Kentucky Statutes. Upon failure of the owner of such property to list the same for tax- ation and pay the taxes thereon, the property may be taxed while in the hands of the warehouseman. CommontvealtJi v. Tabbs Storage Warehouse & F. T. Line, 150 S. W. 525. Same — Tobacco in -warehouses — Liable if it possess a taxable situs: — Tobacco growers entered in to an agreement with the Burley Tobacco Society and the Bourbon County Board of Con- trol by which these two corporations jointly and severally had the power to handle, grade, ship and sell all of the growers' tobacco and to do all other necessary things to carry out the pur- poses of their organization. It was alleged in the petition in an action for the personal taxes on such tobacco, that the same was in the possession of said corporations in the city of Paris and had I)een duly assessed for taxation and was liable thereto under sec- tions 4023 and 4025 of the Kentucky Statutes. It was held, under this statute, if the taxes upon the tobacco had not been paid by the growers, and if it had a taxable situs based on the actual situation of the property in the city of Paris, it was subject to taxation for the years it had a taxable situs in the city. The reversed the action of the trial court which had sustained a de- murrer to the petition. City of Paris v. Burley Tobacco Societv etal.A57S.W.705. Same — Liable for franchise tax on capital stock used in Cold Storage business: — A domestic corporation engaged in the busi- ness of manufacturing and selling ice and also in the cold stor- age business is liable for the franchise tax upon that portion of its capital which is investerl in the cold storage business. The fact that it pays a license tax ui)on its ice business is not material nor can it be successfully maintained that the cold storage busi- ness is merely incidental to the ice business. Merchants fee and Cold Storage Co. v. Commonwealth. 157 S. W. 717. r?44 LOUISIANA LAWS. CHAPTER XVIII LOUISIANA LAWS PERTAINING TO WAREHOUSEMEN riie Uniform Warehouse Receipts Act is in force in Louisi- ana. It took effect January 1, 1909. Laws 1908 No. 221. Also this volume p. 1. An Act governing the manner in which cotton-press receipts, warehouse receipts, or the receipts of other custodians of any property 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 prop- erty shall issue any receipt or other voucher for any produce, merchandise or other property, to any person or persons purport- ing to be the holder, owner or owners thereof, unless such pro- duce, merchandise or other property shall have been actually re- ceived 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 whatever, and who may issue receipts therefor, shall not, under any cir- cumstances, or upon any order or guarantee whatever, deliver property for which such receipts were issued until the party or parties to whom the receipts have been issued, or the legal holders thereof, shall have surrendered the same to the custodians for cancellation, and in default of a strict compliance with the pro- visions of this section of this act. they may be held liable by LOUISIANA LAWS. 345 the legal holder or owner of their receipt for the market value of the property therein described, as may be established by the quotations of prices of any commercial exchange in which the produce, merchandise or other property described in said receipt, may be bought and sold ; and such quotations may be shown by a copy of the same certified to by the president, vice president, secretary or assistant secretary of such exchange, or by any other competent evidence . Sec. 2 of Act No. 72 of 1876 as amended by Act No. 176, Approved July 9, 1902. La. Acts 1902, pages 330, 331. Be it further enacted, etc.: That no cotton press or other custodian or custodians of products or other property shall is- sue any second or duplicate receipt for any goods, wares, mer- chandise, 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 property of any kind whatsoever not actually in their pos- session 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 shall 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 i^roperty in store, shall file their affidavits with the pledges, that such prop- erty is theirs, the pledgors', personal ])roperty, 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 secretary of anv insurance company incorporated or working under any law in the United States or of this state is hereby authorized to administer the oath contemplated under the provisions of this 346 LOUISIANA LAWS. act. Any tkniation ihcrctroin shall rciulcr the party or parties so deviating liable for the value of the property, or any excess in \alne 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 un- (\cv false pretenses ; provided, that the failure or omission from any cause whatsoever, of the borrower or pledgor to make, or the pledgee to require, the affidavit hereinabove mentioned, shall in no manner affect the validity of the pledge of the receipt, in all cases where the pledgor, at the time of making the pledge, was the owner of the property mentioned, or in any case where the pledgor had, at the time the pledge was made, any lien or privi- lege of any kind, on the property mentioned in the receipt ; the intent of this proviso being, that the pledge of the receipt shall in all cases, notwithstanding the absence of the affidavit, be valid, to the extent of the interest or title which the pledgor had in, on, or to the property at the time the pledge was given. As amended by Act No. 176, approved July 9, 1902; La. Acts 1902, pages 329, 331. Be it further enacted, etc.: That the vendors' lien of five days' privilege, now allowed in commercial transactions for the pay- ment of the purchase price, shall not be affected by the provi- sions of this act, except in case in which a warehouse receipt has been pledged as collateral for money borrowed. The holder of the warehouse receipt shall be considered and held as the ac- tual 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 pledger 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 pledger 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 pledger of same, and inform him that he may appoint one expert to act jointly with another one to be appointed by Louisiana laws. 347 the pledgee, which experts 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 pledger 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 charac- ter of the merchandise involved; said experts to examine, ap- praise, and sell to the best possible advantage all of the prod- 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 proceed 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 merchandise in question, and said experts shall make their report immedi- ately thereafter. They shall be authorized to sell at public auc- tion, 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 qualified notary public, or in any court of record located in the parisli in which the ])ledgee may reside. Said experts shall re- ceive such fee as may be agreed upon, but they shall not be au- thorized to exact a fee in excess of the usual commission charged, according to commercial usage, on the character of the i)ro])erty upon which they may have administered. 348 LOUISIANA LAWS. Be it further enacted, etc.: That all warehouse receipts as In- this act provided, shall be netjotiable by indorsement in blank, or bv 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 after its passage, and all laws or parts of laws in con- flict herewith be and the same are herel)y repealed. Laws. 1876, No. 72. p. 113. Above act construed — Owner protected where factor retains receipt in his own name and pledges the same: — Under the above act and the other statutes of this slate pertaining to brokers, warehouseman, factors and warehouse receipts, it was held that it was not the intention of the general assembly that where a factor should be the holder of a warehouse 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 & JVinn v. Hubbard & Co. et al., 49 La. Ann. 715; Insurance Co. v. Kiger, 103 U. S. 352. 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 Louisi- ana: 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 railroad LOUISIANA LAWS. 349 respectively may direct or deem expedient. Laws, 1882. No. 102, p. 155. An act to define and regulate the business of pul)lic warehouses, and the issue of public warehouse receipts ; to define and punish violations of this act. and to repeal conflicting laws. Formalities and qualification: — That the proprietor, lessee or manager of any public warehouse, whether an individual, firm or corporation, before transacting any business in such ware- house, shall procure from the civil district court of the parish in which the warehouse or warehouses 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 lo- cation and name of such warehouse or warehouses and the name of each person individually 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, secretary and treasurer of such corporation shall be stated; and the said certificate shall give authority to carry on and conduct the business of a public warehouse with- in the meaning of this act, and shall be revocable by said cour*^ upon a summary proceeding before the court, on complaint by written petition of any person setting forth the particular viola- tion of the law, and upon satisfactory proof, as in other cases at law. The person 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 dol- lars ($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, mem- ber of firm, or jjresident, secretary or treasurer of a corporation, who shall transact the business of a public warehouse without first procuring a certificate as herein provided, or who shall con- tinue 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 sum- mary proceedings on the written petition of any person setting forth the fact, as above, and upon satisfactory proof before the 350 LOUISIANA LAWS. court whose olork is auilioii/.cd to issue the eerlilicales pro- \ iiled for in seetii)n first of this act. he adjudged to pay to the police jury oi the parisli where the warehouse is situated, or to the city of New Orleans, if tliat he the location of the ware- house, at the discretion of the court, a sum not less than one hundred dollars ($100), nor more than five hundred dollars ($500). and costs of court, for each and every day such business is so carried on ; and the court may refuse to renew the certifi- cate or to grant a new one, to any of the persons whose certifi- cate has been revoked, within one year from the time the same was revoked. But nothing herein shall be construed to intei- fere with, repeal or conflict with the regular license laws of the parish, city or state. Receipts, how issued, etc.: — That on application of the owner or depositor of the property stored in a public warehouse, the warehousemen shall issue over his own signature, or that of his duly authorized agent, a public warehouse receipt there- for, to the order of the person entitled thereto, which receipt shall purj)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 location, the description, quantity, number and marks of the property stored, and the date on which it was originally 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 no two receipts bearing the same number shall be issued from same warehouse during the same year, nor shall any duplicate receipt be issued, excejit 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 be plainly marked on its face, "Duplicate ;" and. provided, that no such duplicate receipt shall be issued by any public warehouseman until ade- quate security be deposited with, or to the order of, said ware- houseman, to protect the party or parties who may finally hold the original receipt in good faith and for a valid consideration. Not without previous receipt of goods: — That no ware- house receipt shall be issued except upon the 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 LOUISIANA LAWS. 351 be issued, and the name of the warehouse shall invariably be specified in such receipt. Delivery to holder of receipt: — That on the presentation and return to the warehouseman of any public warehouse receipt issued by him and properly indorsed, and the tender of all proper ware- house charges upon the property represented by it, such property shall be deliverable immediately to the holder of such receipt; but no public warehouseman who shall issue receipts for goods, shall under any circumstances or upon any order or guarantee whatso- ever deliver the property for which such receipts have been is- sued, until the said receipts will have been surrendered and can- celled, 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. Up- on 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 thereafter be void, and shall not again be put in circulation. Above section construed: — Under this statute the holder of the receipt must tender payment of all charges in order to enable him to recover damages growing out of delay in not de- livering goods when delivery was timely and properly asked. Marks & Rittner v. New Orleans Cold Storage Co., 107 La. 172, 181. Limitation of liability — Prohibited: — That no public ware- houseman shall insert in any public warehouse receipt issued by him any language limiting or modifying his liabilities or re- sponsibilities as imposed by the laws of this state, excepting not accountable for leakage or depreciation. Negotiability: — 'i'hat the receipts issued against property stored in public warehouses, as herein provided for. shall be ne- gotiable and transferable by indorsement in blank or by special indorsement, and delivery in the same manner and to the same ex- tent as bills of exchange and prommissory notes now are. without other formality, and the transferee or holder of such pul)lic 352 LOUISIANA LAWS. warehouse receipt shall be considered and held as the actual and exclusive owner, to all intents and purposes, of the prop- erty therein described, subject only to the lien and privilege of the public warehouseman for storage or other warehouse charges ; provided, however, all such i)ublic warehouse receipts as shall have the words "not negotiable" plainly written or stamped on the face thereof, shall be exempt from the provi- sions of this section ; and provided further, that no public ware- houseman shall issue warehouse receipts against his own prop- erty in his own warehouse, but upon sale of such property in good faith, may issue to the purchaser his public warehouse re- ceipt in form and manner as herein provided, which issue and delivery 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 issuer of said receipt for his own goods in his own f)ul)lic warehouse from complying with 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 provisions of this act shall be deemed guilty of a crim- inal offense, and upon indictment and conviction thereof, shall be fined at the discretion of the court in any sum not ex- ceeding five thousand dollars ($5,000) or imprisoned in the state penitentiary not exceeding five years, or both. Act not applicable to private warehouses: — That nothing in this act shall be construed to apply to private warehouses, or to the issue of receipts by their owners or managers under existing laws, or to prohibit public warehousemen from issuing such re- ceipts as are now issued by private warehousemen under exist- ing laws, provided, that such private receipts issued by public warehousemen shall never be written on a form or blank indi- cating 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 Receipt," in addition to any form of words imposed by laws heretofore in force. Repealing clause: — That all laws and parts of laws in con- flict with this act be and are hereby repealed in so far as they conflict. Laws, 1888, No. 156, page 216. LOUISIANA LAWS. 353 An Act granting a special lien and privilege to persons who sell agricultural 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 Louisi- ana: 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 se- cure the payment of the purchase money for and during the space of five days only after the day of delivery ; within which time the vendor shall be entitled to seize the same in whatso- ever hands or i)lace it may be found, and his claim for the pur- chase money shall have preference over all others, and especially over any warehouse privilege or claim for warehouse charges, or any privilege or claim by the holder of any warehouse receipt. If the vendor gives a written order for the delivery of any such produce 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, page 5L By Act No. 98, approved July 7, 1906, entitled "An Act to further carry into eflfect Art. 297 of the Constitution of the state of Louisiana, and to preserve the public health." (Acts La. 1906, page 163.) The State Board of Health is au- thorized and empowered to revise and amend the sanitary code. By the third section of this Act it is provided : "That any per- son violating any of the provisions of said sanitary code shall on convict'on of any court of competent jurisdiction be fined not less than ten nor more than two hundred dollars for the first of- fense ; not less than twenty-five nor more than four hundred dol- lars for the second offense ; not less than fifty nor more than five hunilred dollars, or imi)risonment for not less than ten days nor more than six months, or both, in the discretion of the court, for each subsequent ofl^ense." The right of the State Board of Health to formulate regula- tions under the above and other acts was sustained in State v. Snyder. 131 La. 3, and Board of Health v. Susslin, 132 La. 569. 23 354 LOUISIANA LAWS. Pursnaiit io authority conferred by said Act approved July 7, \^\\\ tlie State Board of Health has established the following rules and regulations respecting cold storage, which took effect Julv 1. 1^1.\ and is known as Regulat'on No. 39. Cold storage: — 1. The term "Cold Storage" as used in these regulations shall be construed to mean a place artificially cooled to a temperature of 40 degrees Fahrenheit or below, but shall not include such a place in a private home, hotel, or restaurant, or refrigerator cars. The term "Cold Stored" as used in these regulations shall be construed to mean the keeping of "Articles of Food" in "Cold Storage" for a period exceeding thirty days. The term "Articles of Food" as used in these regulat'ons shall be construed to mean and include fresh meat and fresh meat products, except in process of manufacture, fresh food fish, game, poultry, eggs and butter. 2. Any person, firm or corporation desiring to operate a pub- lic cold storage or refrigerating warehouse shall make application in writing to the Louisiana State Board of Health for that pur- pose stating the location of its plant or plants. On rece'pt of the application, the State Food Commission shall cause a examination to be made into the sanitary condition of said plant or plants, and if found to be in a sanitary condition and otherwise properly equipped for the business of cold storage, the State Food Com- missioner shall cause a permit to be issued authorizing the appli- cant to operate a cold storage or refrigerating warehouse for and during the period of one year. 3. In the event that any place or places, or any part thereof, covered by a permit under the provisions of these regulations shall at any time be deemed by officials of the State Board of Health to be in an insanitary condition, it shall be the duty of the State Food Commissioner to prohibit the use under its permit of such specified place or places, or part thereof, as is deemed in an insanitary condition, until such time as it may be put in a sanitary condition. 4. It shall be the duty of any person, firm or corporation per- mitted to operate a cold storage or refrigerating warehouse to keep an accurate record of the receipts and the withdrawals of the articles of food, and the officials of the State Board of Health LOUISIANA LAWS. 355 shall have free access to these records at any time. Every such person, firm or corporation shall, furthermore, submit a quarterly report to the State Board of Health, setting forth in itemized particulars the quantity of food products held in cold storage. Such quarterly reports shall be filed on or before the 6th day of January, April, July and October of each year, and the reports so rendered shall show the conditions existing on the first day of the month in which the report is filed. The State Food Com- missioner shall have authority to require such reports to be made at more frequent intervals than the time herein specified, if in his judgment more frequent reports shall be needed in the in- terest of the proper enforcement of these regulations or for other reasons affecting the public welfare. 5. No article of food intended for human consumption shall be placed in cold storage if diseased or tainted or deteriorated so as to injure its keeping qualities, or if not slaughtered, handled and prepared for storage in accordance with the Sanitary Code of Louisiana and such rules and regulations as may be prescribed by the Louisiana State Board of Health for the sanitary prepara- tion of food products for cold storage. Any article of food if intended for use other than iiuman consumption, before being cold stored, shall be marked by the owner in accordance with forms prescribed by the Louisiana State Board of Health in such a way as to plainly indicate the fact that such articles are not to be sold for human food. 6. It shall be the duty of the Louisiana State Board of Health to inspect and supervise all cold storage or refrigerating ware- houses in this State, and to make such inspection of the entry of articles of food therein as it may deem necessary to secure jjroper enforcement of these regulations. The authorized offi- cials, inspectors and other employees shall be permitted access to such establishments and all parts thereof at all reasonable times for ])urposes of inspection and enforcement of the provi- sions of these regulations. 7. All articles of food when deposited in cold storage shall be marked plainly on the containers in which they are placed or on or in connection with the individual article with the date of receipt, anfl when removed from cold storage, shall be marked with the date of withdradal in plain letters in a conspicuous place. .S?(1 LOUISIANA DECISIONS. N. No person, tinn or oorporalion as owners or having con- trol shall koc]) in coUl storage any article of food for a longer period than twelve calendar months, except with the consent of the State Food Commissioner. The State Food Commissioner may upon application grant permission to extend the period of storage beyond twelve months for a particular consignment of goods, if the goods in {[uestion arc found upon examination to be in proper condition for further storage at the end of twelve months. The length of time for which further storage is allowed shall be sjiecified in the order granting the permission. A report on each case in which such extension of storage may be permit- ted, including information relating to the reason for the action of the officials of the State Board of Health, the kind and amount of goods for which the storage period was extended, and the length of time for which the continuance was granted, shall be included in the report of the State Food Commissioner. ^K It shall be unlawful to sell or to offer or expose for sale uncooked articles of food which have been held in cold stor- age without notifying persons purchasing, or intending to pur- chase the same that they have been so kept by the display of a sign marked "Cold Storage Goods Sold Here," and it shall be unlawful to represent or advertise as fresh goods articles of food which have been held in cold storage. 10. It shall be unlawful to return to cold storage any arti- cle of food that has once been released from such storage and placed on the market for sale to consumers, but nothing in this section shall be construed to prevent the transfer of goods from one cold storage . or refrigerating warehouse to another, pro- vided that such transfer is not made for the ])urpose of evading any provision of these regulations. Note. For an act to regulate the employment of children, young persons and women in warehouses or workshops where the manufacture of any goods whatever is carried on or where any goods are prepared for manufacturing, see act No. 43, Laws of Louisiana, 1886, p. 55. The charters of some cities and towns in Louisiana vest municipal authori- ties with certain control over warehouses located therein. DECISIONS AFFECTING WAREHOUSEMEN B. Warehouseman — Responsibility in general:— li seems that a warehouseman will be held re.s])onsible for the loss of property LOUISIANA DECISIONS. 357 Stored, in all cases where he fails to show that the loss occurred without his fault. Thomas v. Darden, 22 La. A. 413. Same — No presumption of oivnership: — The presumption of ownership resulting from possession is not applicable to factors, brokers and other avowed agents, with respect to money or prop- erty intrusted to them for the special purposes of their vocation. Succession of Hardy Boishlanc, 32 La. A. 109. Same — Goods held subject to order of depositor: — A deposi- tary is bound, in the absence of any judicial proceedings, to hold the property deposited, subject to the order of the depositor. A depositary cannot therefore be held liable in damages, in the absence of fraud, for ol^eying the orders of the depositor. Brit- ton 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 ivarehousemen: — Permanent storage is not incidental to railroad business, hence carrier is not entitled to a license as a warehouseman under Act No. 101 of 1886, on ground that the storage of goods is inci- dental to its business. State v. Southern Pac. Co., 52 La. A. 1822. Default by zvarehousemen — Recovery: — The putting in de- fault of a depositary is a prerequisite to enable the depositor to recover, where the thing deposited has been lost or destroyed. James v. Greenzvood, 20 La. A. 297. Title — Depositary cannot impeach: — A depositary cannot be permitted to introduce evidence to impeach the title of the de- positor. Graham & Anderson v. W'illiams, 21 La. A. 594. Goods pledged by factor — Ozvner protected — Surrender under judicial process — IVarehouseman 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. Without the consent of the owner, the factor stored the i)roperty and burrowed money upon the warehouse receipt therefor as collateral. The factor subsequently failed, in an ac- tion, brought by the owner, against the lender, the former ob- -^5S LOUISIANA DECISIONS. taiiK\l jiulgnient and then possession of the property, giving bond on appeal. The appelhite eourt affirmed the judgment of the lower eourt. holding that the lender, by the indorsement of the warehouse receipt to him, took only such title as the fac- tor had. and that the pledge by the factor was wrongful and in- valid as to the plaintiff. Further, that the delivery, by the ware- houseman, of the property under a judicial writ was, in legal eft'ect. a compliance with the terms of the warehouse receipt, which stated that delivery would only be made upon the return of such receipt. Insurance Co. v. Kiger, 103 U. S. 352. Coin'crsion — 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. Lapeyre- nse, 24 La. 45. Same — Sale by depositary a theft: — A depositary who sells the deposit commits a theft. McGregor 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 relation between debtor and creditor. It is a relation of trust and confidence. It creates a contract in the nature of that which is known, in the civil law, as the irregular deposit. The factor is to be considered as undertaking to hold the funds confided to him by his princi- pal 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 employment, and he cannot retain 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. Shaw & Co., 6 La. A. 40. Factors — Nature of contracts ivith: — The contract implied between principal and factor, in the ordinary transaction of business, partakes, in some respects, of the nature of the con- tracts both of loan and irregular deposit. Their current ac- counts are necessarily provisional until settled, and even after settlement may be rectified by either party on account of er- rors or omissions, subject to which every settlement is held to be made. Bloodworth v. Jacobs et al., 2 La. A. 24. Same — Same — Effect upon third persons: — It was never con- templated by the lawmakers that the mere fact that a factor LOUISIANA DECISIONS. 359 should be the holder of a warehouse receipt taken out by himself in his own name, should confer upon parties the right to deal with a factor, and to absolutely ignore, under full protection, the relations which he has to the property and to its owner. Holten & Winn V. Hubbard & Co. et al., 49 La. A. 715. Same — Pledge — Own debts: — A factor cannot pledge for his own debts, property consigned to him, nor can he give it in pay- ment for his own debts. Hadzvin v. Fisk, 1 La. A. 74; LaUande V. His Creditors, 42 La. A. 705 ; Holton & Winn v. Hubbard & Co. et al., 49 La. A. 715. Same — Same — Same — Defense: — A factor cannot pledge goods of his principal's for his own debts, and where the pledgee is cognizant of the ownership, he 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 — Sarne — 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. Al- len, West & Brush v. JVheatstone et al., 35 La. A. 846. Commission merchants — Ozvn 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. F. Carrier — Teynporary storage: — The plaintiff being engaged in the commission business had an agreement with the defendant to store from time to time a certain quantity of wheat in defend- ant's grain elevator, on condition that the wheat should be kept "on the move." Evidence and circumstances considered and held that defendant was not liable for deterioration in the quality of the wheat ; that plaintiff did not ship the wheat promptly and 360 LOUISIANA DECISIONS. was rcspiMisihlo for I lie loss. Trufant Commission Co. v. Ya- zoo & M. /". R. Co., Ill La. 634. H. Storage charges — Tender of: — Receipt holder must tender payment of all charges to enable him to recover damages for non-delivery. Marks &■ Rittner v. Nc%v Orleans Cold Storage Co., 107 La. 172. 181. Same — May be recovered although goods damaged: — On re- covery by plaintitlf for damage to property while in warehouse, the warehouseman is entitled to receive his storage charges on the damaged property. Marks & Rittner v. New Orleans Cold Storage Co., 107 La. 171, 182. Change of form — Property in principal: — The product or sub- stitute 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 princi- pal 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 at., 2 La. A. 24. Commingling of property — Loss pro rata — Contract for: — Where the volume of grain stored in an elevator, or of oil stored in a tank, is made up of contributions from different owners, and becomes "common stock," its partial destruction by fire, resulting from lightning or other fortuitous cause, must necessitate a pro rata distribution of the loss. But unless it appears that a com- modity, deposited by different owners, has been made common stock, as a matter of fact, a contract, purporting to make it so, should be expressed in unmistakable terms. J ennings-H eywood Oil Syndicate v. H oussiere-Latreille Oil Co., 127 La. 971, 998. N. Loss by fire — Liability — Diligence:- — A depositary is not an- swerable, 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. Liability for cotton unaccounted for: — The proprietors of a cotton yard and press will be held responsible for cotton deposited LOUISIANA DECISIONS. 361 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 possession 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. Vanwickle & Co., 19 La. A. 9. Damage — Necessary proof of "condition: — In order to recover against a warehouseman for damage to the property stored (in this case a quantity of cow peas on cold storage) it is not neces- sary for plaintiffs to show that their goods were not affected by insect life when put in cold storage, or that the process of de- terioration had not begun in the goods, but that the goods, by the usual and ordinary tests of commerce were classed as sound. Marks & Rittner v. New Orleans Cold Storage Co., 107 La. 171. 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. Schivartc, 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, received 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 be- lieved 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 tlie cotton taken out, and then closed again, without being discovered in the daytime. Thomas v. Darden, 22 La. A. AU. Same — Depositary not liable— Where the depositary is not able to resist the seizure and consequent 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; McCul- 362 LOUISIANA DECISIONS. loni V. Porter rt al.. 17 I -a. A. 89; Yale v. Oliver & Drake, 21 La. A. 454. Same — Bitrdeu of proof: — Where defendant having shown a snfticient legal excuse (the cotton having been taken by the federal forces) for not delivering the property, the burden of proof falls on plaintiffs, before they can recover, to show that the cotton was lost to them through the fault or neglect of de- fendant. Babcock & Kernochan v. Murphy, 20 La. A. 399. When not overpoivering 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 without the consent or authority of the owner, he becomes responsible therefor, and the putting of him in default by demand and refusal is unneces- sary. James v. Greenwood, 20 La. A. 297. Negligence — Temperature of cold storage: — Defendant re- ceived a quantity of peas on cold storage, a part of which were found to be damaged when withdrawn. Held: That defendant having been negligent in that the heaps of peas were too large and that it did not sufficiently look after the ventilation of the cold air, it was liable to plaintiff for the damage sustained. Marks & Rittner v. New Orleans Cold Storage Co., 107 La. 171, 179. O. Same — Measure of damages — When cotton held to await bet- ter prices: — Where cotton was stored and held, by a warehouse- man, 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 fac- tor is to insure consignments of produce, and this is brought to the knowledge of his consignor Ijy uniform charges for insur- ance 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, consequent upon Louisiana decisions. 363 his failure to insure, before such notice reaches the consignor. Area & Lyons v. Milliken. 35 La. A. 1150. Q. Warehouse receipt—Issue to factor and in his name and used as collateral — Ozvner 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 that instrument when it is subse- quently advanced by a third party as the basis of rights predi- cated by him upon possession of the bill by the factor, particularly if the delivery of the property is directed to be made to the fac- tor or his order. If after the cotton has been received and the bill of lading therefor has fully carried out its purpose of deliv- ery, the factor stores the cotton, takes a receipt for the same in his own name from the warehouse and makes use of the receipt as a basis for credit, the warehouse receipt evidences a contract with which the owner is disconnected; it is an original transac- tion between the factor in his own name and the proprietors 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 con- tract 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 ct al., 49 La. A. 715. Same — Same — Interest of factor protected — To the extent that a factor is a creditor of his principal and holds a warehouse re- ceipt for his claim, the principal is without power to question the form of the receipt ; a factor, l)eing, under operation of law, subrogated to the rights of his principal to the extent of which he is his principal's creditor. Chambers, Holton & Winn v. Hub- hard & Co. et al.. 51 La. 887. Same — Negotiability — Pledge by factor: — A warehouseman had issued receipts for cotton stored with him to one wiio repre- sented himself as the owner thereof, but who was in reality only the factor of the owner and had no interest in the property stored. Such depositor subsequently pledged the receipts to secure the l)ayment of a loan made to him. In an action brought by the owner against the lender, it was held that the latter, by the ne- gotiation of the receipts to liim, took only such title as the fac- tor had. and a judgment awarding thr ])roi)erty to the owner was affirmed. The possession and transfer of the receipt held to be 364 I.oriSlANA nF.CISTONS. equivalent i^ily to possessicMi and transfer of the property it- self. Iiisurancr Co. v. Kij/cr, lOo U. S. 352. Sanir — 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 hut 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- luniseman. The depositor subsequently deposited other cotton in the same warehouse, receiving receipts for the same, also without designating the particular cotton covered by them. 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 ownership 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; IVilliams v. Finer, 10 La. A. 277; Corm- mach V. Floyd, 10 La. A. 351 ; Cannery v. Webb, 12 La. A. 272; Nezvton v. Gray, 10 La. A. 67). State Nat. Bank v. Bryant & Mathers, 49 La. A. 467. Same — Description of goods: — Under Article 3158 of the Code the recital "warehouse receipts for 30 cases — bales — leaf tobac- co" satisfies the requirement of this .statute, and is a sufficient mention of "the species and nature of the thing given in pledge." Blanc V. Germania National Bank, 114 La. 739, 743. Same — Fledge of — Statute must be strictly complied zvith — Receipt must represent specific goods: — Act No. 72 of 1876 re- quires that warehouse receipts shall be paragraphed "for hypothe- cation" and section 4 of the act requires the making of an affi- davit. 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 represented by the receipts. A warehouse receipt in the form prescribed by the above act must stand for the goods themselves, in such a way that its de- livery will operate as a delivery of the goods; but in order that this should be, the receipt must represent the specific goods, or, LOUISIANA DECISIONS. 365 at any rate, must represent a specific part of a common, or uni- form mass ; and a lot of cotton bales cannot be treated as a com- mon or uniform mass, especially when, in addition to the physi- cal 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-con- formity with the statute is fatal to any attempted pledge. Pier- son V. Metropolitan Bank, 106 La. 298; Pierson v. Canal Bank, 106 La. 305. Same — As collateral — Delivery sufficient: — The delivery of warehouse receipts into the possession of a pledgee is sufficient as a pledge without other formality. Blanc v. Germania National Bank, 114 La. 739,743. Same — Same — Must be a valid receipt issued to true ozvner or duly authorized agent — Sections 40, 41 and 47 of Uniform Warehouse Receipts Act construed. Bills of Lading were obtained from a bank where they had been pledged to secure advances, by the giving of "trust re- ceipts." by the pledgor. Such "trust receipts" inter alia pro- \ided that the pledgor obtained the bills of lading for the cot- ton mentioned, and if the cotton were sold he would hold the proceeds as trustee for the bank. The pledgor, having thus secured the bills of lading, stored the cotton and obtained ne- gotiable warehouse receipts therefor which he pledged with another bank ; which bank relied upon Section 40 to support its contention that the pledge to it was valid. The court held the pledge of the warehouse receipts void, that the pledgor had no authority under the "trust receipts" to store the cotton, obtain negotiable warehouse receii)ts therefor and pledge them for loans and that in order to i)ass title under Sections 40. 41 and 47 of the Uniform Warehouse Receipts Act. even to one taking innocently, there must be in existence a valid warehouse receipt for goods stored by the true owner or by some one having the right and authority to store them for him. A receipt issued by a warehouseman without the authority, knowledge or consent of the owner of the goods can have no more effect than a forged bill rir note. In re Dreuil & Co.. 20S Fed. 568. Same — Deposited by a factor and used as collateral by him — Judgment — Warehouseman protected: — A warehouseman who 366 LOUISIANA DECISIONS. had rccci\ ed cotton on deposit from a factor issued his ware- house receipt for tlic same, deHveral)le to the depositor or his order, only on surrender of the receipt. 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 par- ties claimed a portion of the property in the hands of the ware- houseman, 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, l)Ut judgment was rendered ordering the warehouseman to surrender the cot- ton to the claimants. Held, that the delivery of the cotton by the warehouseman to the claimants, under the judgment, pro- tected 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 authorized 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. Same — Act of i8/6 does not apply to U. S. bonded warehouse receipts: — United States bonded warehouse receipts are not sub- ject to the requirements of Act 72 of 1876, p. 113, sec. 2, which provides that receipts shall be marked "For hypothecation." They are not statutory instruments regulated by said act but mere ordinary warehouse receipts, regulated by commercial law, and not required to conform to said act to be susceptible of being pledged. Blanc v. Germania National Bank, 114 La. 739, 743. R. Bills of lading — Functions of: — The function of a bill of lading is different from that of ordinary 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 per- formance of a certain duty — a representative of goods or person- al property to be delivered. Lallande v. His Creditors, 42 La. A. 705. Same — Stipidations against loss by fire — Cannot excuse negli- gence: — A stipulation in a bill of lading, for the transportation of cotton, that the carrier shall not be liable for damage occa- LOUISIANA DECISIONS. 367 sioned by fire, will not exonerate it from responsibility for loss or damage from this cause if the fire be occasioned through the fault or ordinary negligence of the agents, servants or employees of the carrier. Maxzvell & 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 be- come possessed of all the incidents of negotiability that are at- tributes of bills and notes. Lallande v. His Creditors, 42 La. A. 705. 368 MAINE LAWS. CHAPTER XIX MAINE LAWS PERTAINING TO WAREHOUSEMEN How far shipper, factor or agent shall be considered the owner of goods under his control: — livery person in whose name merchandise is forwarded, every factor or agent intrusted with the possession of any bill of lading, custom house permit, or warehouse keeper's receipt for the delivery of such merchan- dise, and every such factor or agent not having the documentary evidence of title, who is intrusted with the possession of mer- chandise 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 or any part of such merchandise, money advanced, or ne- gotiable instrument or other obligation in writing, given by such person upon the faith thereof. Rev. Stat. Me. 1903, ch. 33, sec. 1. Not to extend to prior demands against agent : — No person, taking such merdandise in deposit from such agent as security for an antecedent demand, shall thereby acquire or enforce any right or interest therein other than such agent could then enforce. Id. ch. 33, sec. 2. Rights of the true owner in such cases: — But the true owner of such merchandise, upon repayment of the money .so ad- vanced, 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, after deducting all proper claims and expenses thereon. Id. ch. 33, sec. 3. Title to goods in possession of warehousemen passes to pur- chaser, or pledgee, by indorsement of warehouseman's receipt: — The title to merchandise stored in a public warehouse, or on the wharves and premises of the warehouseman, and in his pos- MAINE LAWS. 369 session, passes to a purchaser or pledgee, in good faith, by the indorsement to such purchaser, or pledgee, but not in blank, of the warehouseman's receipt therefor, signed by the person to whom the receipt was originally given, or by an indorsee of the receipt and recorded in the books of the warehouseman with whom such merchandise is stored. Id. ch. 33, sec. 4. Account of warehouse transactions to be kept: — Each ware- houseman shall keep books in which shall be entered an account of all transactions relating to the warehousing, storing and in- suring of merchandise and the issuing and the endorsement of warehouseman's certihcates, which books shall be open to the in- spection of any person interested in the property stored in the warehouse. Id. ch. 2)2>, sec. 5. Goods attachable as goods of person receipted to: — Mer- chandise stored with a public warehouseman may be attached as the property of the person named in the warehouseman's re- ceipt therefor, when no indorsement of such receipt has been recorded on the books of the warehouseman ; and. where such indorsement has been recorded, may be attached as the property of the last indorsee of the receipt shown by the books of the warehouseman, by leaving at the warehouse where the merchan- dise is stored a copy of the writ, with a copy of so much of the officer's return thereon as relates to the attachment of such merchandise. And such attachment is valid against any trans- fer which was not recorded in the books of the warehouseman, when the copy of the writ was left. /(/. ch. Z2), sec. 6. Penalty for disposing of warehouseman's certificate with- out disclosing attachment: — Whoever indorses or assigns, or otherwise disposes of a warehouseman's certificate, after his in- terest in the property described in such certificate has been attached, without disclosing the attachment thereof to the person to whom such certificate has been indorsed, assigned or dis- posed of, if he has knowledge of such attachment, shall be pun- ished by a fine not exceeding five thousand dollars or by im- prisonment not exceeding three years. Id. ch. ?)i, sec. 7. Who is a public warehouseman: — .\ny person, firm or cor- poration advertising or oficring to receive merchandise on storage for other parties, shall ]>e deemed a public warehouse- man for the purjjoses of this chapter. Id. sec. <">. 24 370 MAINE LAWS. Grain, etc., stored in public warehouse becoming mixed — Proceedings: — When grain or other property is so stored in a pubHc warehouse that different lots or parcels are mixed to- gether, so that the identity of the same cannot be accurately preserved, the wareiiouseman'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 identifica- tion. Id. ch. ZZ, sec. 9. Goods, etc., remaining in warehouse one year may be sold at public auction — Demand shall first be made for payment of charges upon person depositing goods — Notice shall be given of sale — How proceedings of sale shall be disposed of: — Whenever goods, merchandise or any articles of personal prop- erty shall remain in a public warehouse for one year after the expiration of the time for which the charges shall have been paid, or for six months after the charges thereon have been law- fully demanded and left unpaid, the same may be sold at public auction, subject to the following conditions; the warehouseman, in case such demand has not been made, shall first demand pay- ment of the charges thereon by registered letter directed to the person who deposited such goods, merchandise or articles of personal property in said warehouse, if such person left with the warehouseman his address to which the letter may be directed. After such demand, or in cases where no such demand is re- quired or where no address was 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 public news- paper published in the city or town where the warehouse is, or if no public newspaper shall be published in such city or town, then in any public newspaper published in the county in which such city or town is; said notices 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 of^Hown where the ware- house is, 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, MAINE DECISIONS. 371 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 said charges thereon. Id. ch. 2)?>, sec. 10. Above section construed: — This statute repeals, by implica- tion, the prior and general statute of c. 91, sections 48 and 56, R. S. of 1883, so far as it applies to warehousemen. A sale under the former statute is unauthorized and warehouseman is liable for conversion. Stoddard v. Crocker. 100 Me. 450. Penalty for uttering forged receipts of delivery or deposit of goods, bonds, or securities: — Whoever fraudulently makes or utters a receipt or other written evidence of the delivery or deposit or any grain, flour, pork, wool or other goods, wares, or merchandise in any warehouse, mill, store or other building, when the quantity specified therein had not, in fact, been de- livered 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 nor more than ten years. Id. ch. 127, sec. 2. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Bailee may sue in his ozvii name: — A bailee of per- sonal 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 suffered to go Ixick iiUo the hands oi the bailee — the attachment being wi thereby dis- solved. Small V. Ihitchins. Jr.. 19 Me. 255. 372 MAINE DECISIONS. Same — Bailrc din (jh'C no Hen: — A hailcc can give no lien upon the pniperty hailed, as against the owner. Small v. Robinson, 69 Me. 423. Same — Stif^idatio}! against loss by fire — Posted notices: — A bailee may properly stipulate that he will not be responsible for goods lost by fire and this stipulation may be shown by proving a notice to this eflfect brought to the attention of the bailor. Reinstein v. ITatts, 84 Me. 139. Same — Assignment by bailor— Notice: — It is not a contradic- tion of the rule that a bailee shall not dispute his bailor's title to allow him to show that since the bailment the title has been assigned to another. Roberts v. Noyes, 76 Me. 590. H. Storage charges — Sale for — Statute: — Upon sale for unpaid storage charges, warehousemen must proceed under Act of 1897, ch. 304. p. 339 (now Rev. Stats. Me. 1903, Ch. 33, Sec. 10). and a sale under the provisions of Ch. 91. Sections 48 and 56, R. S. of 1883. will render him liable for conversion. Stoddard v. Crocker, 100 Maine 450. Same— Chattel mortgage: — A chattel which had been sold under an agreement constituting a mortgage to secure the pur- chase price and duly recorded, was left by mortgagee when he vacated the premises. The landlord refused to deliver the chattel to the mortgagor until payment was made for storage. Action to recover the money paid under protest to secure the release of the chattel. Held: In the absence of any agreement, the common law does not give to a person, not an innkeeper or warehouseman, a lien on personal property for its storage and that the money so paid could be recovered. The Court also stated that the property being subject to a mortgage, the mort- gagor could not by any act of his subject it to a lien which would take precedence of the mortgage. IVhitlock Machine Co. v. Holway, 92 Maine 414. R. Bill of lading — Definition: — 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 deliver the same. O'Brien v. Gilchrist, 34 Me. 554. MAINE DECISIONS. ^73 Same— Parol proof: — In so far as a bill of lading is a re- ceipt, it may in a suit between the parties to it be controlled by parol evidence. Id. Same — Stipulations against negligence: — Common carriers cannot stipulate for exemption from responsibility for losses occasioned by the negligence of themselves or their servants. Sanger v. Portsmouth, S. P. & E. R. R. Co., 31 Me. 228; Willis et al. V. Grand Trunk R. R. Co., 62 Me. 488; Railroad Co. v. Lockzvood, \7 Wallace, 2)S7. Same— "Good order" construed — Burden of proof: — The signing of a bill of lading, acknowledging to have received 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 presumption of law is that it was occasioned by the act or default of the carrier, and the burden of proof 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 ni lading to third person for a valuable consideration, the right of the consignor lo 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 i)re-existing debt. Lee v. Kimball, 45 Me. 172. Bills of lading— Negotiability:— \i\\\s of lading arc transfer- able by indor.sement, and when thus transferred by the consignee to a bona fide i)urchaser, without notice of adverse claims, they pass the legal title, and operate as a sale and transfer of the property to the indorsee. JVinslozv v. Norton, 29 Me. 419; Lee v. Kimball, 45 Me. 172. 374 MARYLAND LAWS. CHAPTER XX MARYLAND LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Mary- land. It took effect June 1. 1910, Laws of Maryland. 1910, Ch. 406, p. 46, Am. Code," Md. ,1911, Art. 14A, Vol. I, p. 318 (Legal- ized, Laws of Md., 1912, Ch. 21, p. 58), also this volume p. 1. Sections sixty and sixty-one of the Uniform Act are omitted. A new section, designated section sixty-one, is added and is as follows. Bonded warehouses of the United States, known as distillery warehouses, as defined by and existing under the laws of the United States of America and situated in this State, shall be deemed to be warehouses within the contemplation and meaning of this section, and such distillery warehouses shall be subject to all the provisions of this Article not inconsistent with the laws of the United States regulating the conduct and operation of such distillery warehouses, and all warehouse receipts after February 27, 1906, issued by such a distillery warehouse shall be governed by and subject to all the provisions of this Article as fully to all intents and purposes as the warehouse receipts of any other warehouseman, corporation or person conducting a general warehousing business in this State. Note. Undoubtedly Act of April 8, 1908, Ch. 548 Laws 1908, p. 9, has been re- pealed, as have also chapters 244 and 319, Laws 1908 in so far as they pertain to ware- housemen. Sec. 52. Warehouse receipts act construed: — The Court said, "We hold, then, that there is a manifest inconsistency and a plain repugnancy between section 52 of the Act of 1910 (the above section) and section 194 of article 27 of the Code, and that the two sections cannot stand together. . . . That article 14, section 10, of the Code, has been expressly repealed, and that article 27, section 194, has been repealed by implica- tion, leaving in force the subject matter and penalties fixed by MARYLAND LAWS. 375 the act of 1910, for the violation of those respective statutes." State V. Gamhrill, 81 Atl. 10. If any person entrusted 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 dehvered to the parties with whom the same is stored to be shipped and transported from the city of Baltimore to the purchaser of said grain or other merchandise, shall for his own benefit and in violation of good faith neglect or refuse to deliver to the party so entrusting him with said money, drafts or checks, the draft or bills of exchange, with the documents for the ship- ment of the said cargo of grain or other merchandise, and the policies of insurance upon said grain or other merchandise, as soon as the shipment is completed and bills of lading delivered therefor, every such offender shall be guilty of a misdemeanor, and being convicted thereof shall be imprisoned in the peniten- tiary not more than ten years nor less than one year, or be fined not more than five thousand dollars nor less than five hundred, or shall be both fined and imprisoned as aforesaid, in the dis- cretion of the court. Public Laws, Md., 1904. Art. 27, sec. 195. Fraud — Bills of lading : — No person or corporation, or agent or officer of any person or corporation in this State shall issue any bill of lading, receipt, acknowledgment or voucher whatso- ever, for goods, chattels or commodities of any kind, to be trans- ported on land or water, or on both, or any receipt, acceptance of an order or other voucher for goods, chattels or commodities, as on storage or deposit in this State, until and unless the whole of said goods, chattels and commodities shall have been actually received to be transported by sucli person or corporation in the one case, or shall be actually in the possession or custody or upon the premises, or under the al)Solute 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 corporation, or any agent or officer whatsoever, of any person or corporation wilfully violating tlu' provisions or any i)rovision of this section shall be guilty of a misdemeanor, and on convic- tion thereof shall be .subject to a tine f)f not less than one thou- sand nor more than five thousand dollnr^. in the discretion of the court. Id. Art. 27, sec. 118. 376 MARYLAND LAWS. Fraud — Breach of trust, bills of lading, elevator or ware- house receipts: — If any person or persons shall on his or their own behalf, or shall for on behalf of any other person or per- sons, or shall for or on behalf of any firm, copartnership or cor- poration, receive, accept or take in trust from any person, persons, tirni. copartnership, or corporation any warehouse receipt or elevator receipt, or bill of lading, or any document giving or purporting 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 expressing the terms and condition of such trust; and if such person or persons so receiving any warehouse receipt or ele- vator receipt, bill of lading, or any document giving or pur- porting 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 of not more than ten years nor less than one year, or be fined not more than five thousand dollars nor less than five hundred dollars each per annun. Id. art. 27, sec. 119. The governor, biennially, shall nominate and by and with the consent of the senate, appoint one inspector of tobacco, who shall be a tobacco grower and resident of one of the tobacco- growing counties of this State. He shall receive a salary of two thousand dollars per annum, shall have charge of all the State tobacco warehouses in the city of Baltimore, and his term of oftice shall begin on the first Monday of March next ensuing his appointment. Ann. Code, Md.. 1911, Art. 48, Sec. 9. The 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 thirty thousand dollars, with a surety of sureties to be approved by the treasurer of the State, condi- tioned for the faithful performance of the duties imposed upon him by law, which bond shall be recorded in the ofifice of the clerk of the superior court of Baltimore city; and he shall, as soon as he shall have bonded and qualified as required by law, take charge of all the tobacco warehouses in Baltimore city MARYLAND LAWS. 377 and all the tobacco, books, furniture, appurtenances and effects belonging to the same, and shall receipt to his predecessor 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. Said inspector shall personally or by a sampler or samplers, in tliis article provided for, inspect all tobacco in said warehouses, but neither he nor any other per- son appointed to. or employed in said tobacco warehouses shall engage in the purchase or sale of tobacco (except that he may sell tobacco of his own raising), nor shall any person appoint- ed to or employed in said warehouses receive any gift or emolu- ment whatever, either directly or indirectly, for any service in the line of his duty other than his regular salary or wages ; and an person violating the provisions of this section, shall be im- mediately dismissed from office or service. Each of the said samplers, before entering on the duties of his office, shall give bond to the inspector with a surety or sureties to be approved by said inspector, in the sum of two thousand dollars, condi- tioned for the faithful discharge of his duties, and the said inspector in his discretion, may exact a bond from the person or persons who receive and handle the moneys collected on ac- count of the business of said warehouses. Said inspector shall have authority to dismiss any and all appointees and employes in said warehouses, whenever, in his judgment, it shall be for the good of the service ; and any neglect of duty on the part of any employe shall be cause for his immediate removal by the inspector. Id. Sec. 10. The insj)ector of tobacco shall have the power to appoint f)ne chief clerk at a salary of twelve hundred dollars per an- num ; three assistant clerks each at a salary of nine hundred dollars per annum : two samplers of tobacco, each at a salary of twelve hundred dollars per annum ; one receiving clerk, one shii)ping clerk, one weighing clerk and one distributing clerk, each at a salary of eight hundred dollars per annum ; two sample tyers, each at a salary of seven liuiulred dollars per annum; one janitor, one finder, one elevator and stay-floor man, and ten screwmen, each at two dollars per day; and four laborers, each at one dollar and a half per day. The inspector may also, in his discretion, employ such adflitional help (clerical and man- ual) as may be necessary for the efficient and economical man- agement of the warehouses ; to be paid during the time employed 378 MARYLAND LAWS. al tlic sanio rates as abo\e lixcd for siiiiilai' services; and he shall keep in his office a current public record of such addi- tional help employed by him, the duties to be discharged and the pay to be received by the same; and he may assign any ap- pointee or employe to any work deemed by him necessary for the business of the tobacco warehouses; and he shall (as far as possible) equitably apportion the patronage at his disposal among the inhabitants of the tobacco-growing counties of the State. Id. Sec. 11. The salaries and wages of the inspector and all his appointees and employes in and for said warehouses, as also all operating expenses of said warehouses, shall be paid from the receipts thereof, and from no other source. Id. Sec. 12. The inspector shall have full charge of all the receipts and disbursements of said warehouses, except for repairs ; and shall make a report quarterly to the comptroller on the first days of January, April, July and October of each year, showing the receipts and disbursements of each of said warehouses, with vouchers therefor, giving in detail the respective amounts re- ceived from outage, storage, cooperage, reconditioning, stays and sale of scraps, and also showing the respective amounts paid for labor, nails, lumber, hoops, incidentals, wages and salaries, and showing the cash balance for each quarter, and at the quar- ter ending July first in each year, shall pay over to the comp- troller all moneys in hand remaining after paying all expenses and salaries of said warehouses. Id. Sec. 13. In case of the absence of the inspector by reason of sickness or any other unavoidable cause, his duties, during his absence, shall devolve upon the chief clerk, unless the inspector desig- nate some other clerk or employe to act in his place ; and the person so acting shall qualify under oath for the faithful dis- charge of the same. Id. Sec. 14. The hours of labor in the several tobacco warehouses in the city of Baltimore shall be from seven o'clock A. M., until twelve o'clock M., and from one o'clock P. M., until six o'clock P .M. Id. Sec. 15. All tobocca landed or delivered at any of the warehouses in the city of Baltimore, for inspection, shall be taken charge of by the inspector, through his receiving clerk, and the parties deliver- ing the same shall be entitled to receive, upon demand, the in- spector's receipt therefor. Id. Sec. 16. MARYLAND LAWS. 379 It shall be the duty of the inspector to cause each hogshead of tobacco landed or delivered at the warehouses to be numbered 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 convey- ance, if known to him, by which said hogshead was brought to the city of Baltimore and of the owner or consignee of said to- bacco, 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. 17. It shall be the duty of each tobacco inspector to cause all tobacco in the warehouse to which he may have been appointed to be inspected as speedily as practicable in regular order as numbered without favor, affection or partiality to anyone; and each violation of the provisions of this section shall subject the offender to a penalty of one hundred dollars, to be recovered in the criminal court of Baltimore. Id. Sec. 18. It shall be the duty of each inspector to cause each hogshead of tobacco before it is uncased, to be weighed, and the tobacco in each hogshead, and the cask itself, to be separately weighed in his presence, or that of his weighing clerk, in scales with weights of the proper standard; and the weight of each hogshead as first weighed, and the gross and net weight of the tobacco there- in contained after inspection, to be entered in a proper book, with sufficient reference to its numbers and marks as previously recorded. Id. Sec. 19. It shall be the duty of each inspector to cause to be marked with a marking-iron on the side of each hogshead of tobacco under his charge, the warehouse, number and weight of said hogshead, and the net weight of tobacco contained therein, and to cause the warehouse number of each hogshead to be marked with blacking on each head thereof. /(/. Sec. 20. Every inspector shall have uncased and break every hogs- head of tobacco that may be delivered for inspection in not less than five different places for Maryland and Ohio and not less than three different places for Kentucky and Virginia to- bacco and in as many more places as may be necessary to fully 380 MARYLAND LAWS. dctenuiiK' ilic contents of said liogshead, and if the inspector shall he of the opinion that such toljacco is sound, clean and in good order, then he shall select from each break as many bun- illes as will correctly represent the diilerent qualities of tobacco contained in the break, and the bundles so selected shall be con- sidered the sample of the hogshead; he shall also have the hogs- head properly marked with its number, the year of inspection and the names legibly written of the owner on each head and l)ilge and shall have the tare and net weight marked with iron on the bilge as directed in the preceding section. Id. Sec. 21. 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 aribtration 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 member of said committee ; provided, however, that no per- son 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. 22. The said committee of arbitration when duly constituted and appointed shall fully examine and investigate all the facts con- cerning the subject in controversy before them, and to that end they shall have power to send for persons and papers, to compel the attendance of witnesses, to administer oaths, and to examine witnesses on oath ; they shall determine all questions which may be submitted to them by a majority vote, and shall assess what- ever damages, if any, that may adjudge due by reason of any false or erroneous inspection, and from their finding or award there shall be no appeal ; all damages shall be assessed upon the basis of the market value of the particular grade of tobacco on the date of the reclamation ; and no claims on tobacco shipped to any point in the United States shall be considered or allowed after the expiration of six months from the date of its inspec- tion, nor after the expiration of nine months from the date of its inspection, if shipped to any foreign country; nor shall any claim be allowed upon tobacco which shall have changed by fer- mentation. Id. Sec. 23. The inspectors shall pay the amount of any award made in MARYLAND LAWS. 381 writing and under seal by any committee of arbitration duly constituted, as heretofore provided, to the party or parties there- to entitled, within thirty days 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 re- turned 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. 24. If any inspector shall upon examination of any hogshead of tobacco have reason to suspect that the same is trash or false packed, he shall cause the same to be shaken out and repacked, and shall charge for so doing the sum of two dollars per hogs- head, the same to be paid by the owner or his agent ; and if any inspector shall find that the package, cask or hogshead contain- ing said tobacco is constructed of green or unseasoned timber, it shall be his duty to uncase said tobacco and furnish a new and dry package, cask or hogshead for the same at the cost and expense of the owner of said tobacco or his agent; said cost and expense not to exceed, however, the sum of one dollar for each package, cask or hogshead so furnished. Id. Sec. 25. It shall be the duty of the inspector to confine the sample of each hogshead of tobacco inspected, by tying them together with a strong tape run through the head of said sample in such manner as shall be most likely to prevent the bundles from sepa- rating or being pulled out, and shall fasten on said sample a pasteboard label on which shall be written the marks and num- ber of the hogshead, the date of insi)ection. and the name or number of the warehouse, and shall seal said tape and label with sealing-wax. and shall stamp it with the seal of the warehouse. Whenever a hogshead, of tobacco is redrawn or reviewed, the sample and label thereon of the original inspection shall be re- turned to the inspector, to be by him destroyed; and the label on the sample given at the redrawing or reopening of the tobacco shall show that the hogshead has been reinspected or reviewed. Jd. Sec. 26. Any person or persons who shall pull out or break off any leaf or leaves, or in any manner tamper with any sample of to- bacco, shall be guilty of a misdemeanor, and shall, upon con- viction thereof in the criminal court f)f Baltimore city, be fined not more than one hundred dollars for each offense: and no 3S2 MARYLAND LAWS. person, except the inspector, sampler, sainple-tyer or other desig- nated employe shall he pcrniiltcd to handle any hnndle of tobac- co, drawn for the purposes of a sample, until the same shall have been tied up and sealed as required by law ; and any un- authorized person handling said tobacco in violation of the pro- visions of this section, shall pay a fine of twenty dollars for each offense, to be recovered before any police justice of the city of Baltimore, as other fines are now recovered. It shall be the duty of each and every employe in the State tobacco warehouses to report to the inspector any and all violations of the provisions of this section that may come to his notice or of which he may be cognizant ; and it shall be the duty of the inspector to make a memorandum in writing, of each and every such violation re- ported to him as aforesaid, in a book to be kept in his office for that purpose, and to be open to public inspection. Id. Sec. 27. Tf any certificate or note be lost or mislaid or destroyed the person entitled to receive the tobacco by virtue of such note or certificate may make oath before a justice of the peace to the effect of said note being lost and shall take a certificate to that effect from such justice of the peace to the inspector and deposit the same v.^tih him ; then the inspector may deliver to such per- son a new note or certificate with marks, numbers, weights and date corresponding with the former note and shall thereby be discharged from all actions and demands on account of such former note or certificate. Id. Sec. 28. No person shall be entitled to receive a new note or certifi- cate in lieu of any note or certificate lost or mislaid unless he shall notify the inspector at whose house it was issued within, twenty days after such note or certificate is first discovered to be lost or mislaid. Id. Sec. 29. All tobacco inspected in any of the warehouses which may be condemned or stayed shall be carefully cased up and weighed and the gross weight and tare be entered upon a book kept for that purpose, together with the number of breaks in such hogs- head as may be stayed, also the cause, whether for false pack- ing, trash, order or wet. Id. Sec. 30. All tobacco thus stayed shall, with all convenient dispatch,- be shaken out, reconditioned and packed under the supervi- sion of the inspector and reweighed and entered upon the in- spection books as all other tobacco. Id. Sec. 31. MARYLAND LAWS. 383 The inspector shall charge for reconditioning and repacking stayed tobacco the following prices per hogshead: For one or two breaks, one dollar; for full stay, two dollars, to be paid by the owner or his agent; and for redrawing hogsheads of Mary- land and Ohio tobacco, fifty cents each; and for redrawing all other kinds, one dollar each, to be paid by the owner or his agent; and for outage, two dollars for every hogshead not ex- ceeding eleven hundred pounds, and twelve and a half cents ad- ditional on every hundred pounds over eleven hundred pounds, to be paid by the shipper of the tobacco or his agent. Id. Sec. 32. The owner of any tobacco that may be stayed or condemned shall have the privilege of removing the same from the ware- house free of all costs or charges whatever, either for outage, cooperage or storage; provided, however, that it shall not be lawful to remove any stayed tobacco from one warehouse to another, except as all other tobacco is removed. Id. Sec. ZZ. All tobacco delivered at any of the warehouses in the city of Baltimore for inspection, in such condition as to require cooper- age, shall be properly coopered and taken care of, and the own- er or his agent charged for the same not less than twenty-five cents nor more than fifty cents for each hogshead thus coop- ered. Id. Sec. 34. All scrap tobacco accruing in any of the warehouses in the city of Baltimore shall be sold by the inspector to the best ad- vantage, for the benefit of the tobacco fund, and the proceeds accounted for with all other receipts in returns to the comptrol- ler. Id. Sec. 35. Each inspector shall, in the month of April, annually, cause to be inserted in some one of the Baltimore newspapers, once each week, for four successive weeks, an advertisement, stating the name of the warehouse, the weight, gross, tare and net, the number and the name or initials of any hogshead of tobacco that may have been inspected, which has remained in the warehouse for the space of four years, and the owners whereof are un- known to the inspector; and if such tobacco shall not be claimed within thirty days after the termination of the advertisement, the same shaTl be sold by the inspector in such manner as he shall deem best, and the proceeds be accounted for in the first quarterly return thereafter. Id. Sec. 36. If the owner of any tobacco, sold under the preceding sec- tion, shall, within one vear from llic date thereof, satisfy the 384 MARYLAND LAWS. coniiitrollcr that the toliacco so sold was his right and property, the ootiiptroller shall draw his warrant on the treasurer for the amount of such sale, after deducting warehouse costs and charges. /(/. Sec. 3>7. No tohacco of the growth of this State shall be passed or ac- counted lawful tobacco unless the same be packed in hogsheads not exceeding fifty-four inches in the length of the staves, nor exceeding forty-six inches across the head ; and the owner or his agent of tobacco packed in any hogshead of greater dimen- sions shall repack the same in hogsheads of the size herein pre- scribed, at his own expense before the same shall be passed. Id. Sec. 38. Whenever so large an amount of inspected tobacco shall have accunuilated 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. 39. No tobacco of the growth of this State, and in the hands of the planters, or their agents, shall be subject to any costs or charges for storage or warehouse rent ; this provision not to ap- ply to tobacco the growth of any other State, or the growth of this State which may have been sold to any purchaser or ship- per. Id. Sec. 40. For every hogshead of tobacco of the growth of this State, that shall remain in any warehouse, after being sold by the grow- er, or his agent, for a longer period than six months, and for every hogshead of tobacco of the growth of any other State, whether sold or unsold, that shall remain in any warehouse for a longer period than four months, the inspector of such ware- house shall charge the owner thereof the sum of fifteen cents for each month after the said six and four months, respectively. Id. Sec. 41. Tn 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 cording 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 on any to- bacco received at or delivered from any of the State warehouse wharves. Id. Sec. 42. MARYLAND LAWS. 385 The name of the owner of every hogshead of tobacco deliv- ered for inspection at any State warehouse in the city of Balti- more shall be legibly marked or stenciled thereon; and it shall be the duty of the inspector to retain for inspection every hogs- head of tobacco not so marked or stenciled until the name of the owner thereof shall have been ascertained and placed thereon. Id. Sec. 43. It shall be the duty of the s.everal inspectors of tobacco to care- fully return all bundles of tobacco, other than samples which may be drawn in sampling, and all bundles which may be dis- placed in uncasing tobacco to the hogshead from which the same were drawn or displaced; and any inspector of tobacco who shall knowingly violate the provisions of this section shall be deemed guilty of misconduct in office, and shall be liable to removal therefrom. Id. Sec. 44. It shall and may be lawful for any grower or owner of to- bacco grown in this State to sell the same either in the State or out of it. in hogsheads of any size or weight, or in boxes, or in any other kind or style of package, without being compelled to have the same inspected by the State inspectors, and without being compelled to place the same in the State warehouses for any purpose whatsoever, or to pay any charge for outage, stor- age or any other charge thereon, to the State or any of its con- stituted officers. Id. Sec. 45. If any grower or owner of tobacco grown in this State shall desire to store such tobacco in any of the State tobacco ware- houses, without having the same inspected by the State inspec- tors, and without the same being subject to the laws relating to inspections of tobacco, he may do so upon ])aying storage there- for at the fate of twenty-five cents per hogshead per month, or fractional part of a month, for the first two months that said tobacco shall remain in said warehouses, and fifteen cents per month or fractional part of a month for every succeeding month that said tobacco shall remain in said warehouses ; but no charge for outage shall be made upon said tobacco, and all money re- ceived from said storage shall be credited to the warehouse receipts of the warehouse in which said tobacco shall be stored, but no tobacco storerl in said warehouses under the provisions of this section shall be inspected in said warehouses by any pri- vate in.si)ector ; and the said tobacco may at any time l)e removed from said warehouse by the owner upon payment of the storage 25 386 MARYLAND LAWS. in ihc saiiK' manner as if said warehouse was a private ware- house. Id. Sec. 46. The comptroller, librarian, or other proper officer, shall fur- nish each tobacco inspector with a bound copy of so much of this article as relates to the inspection of tobacco, for his office use. the cost of the same to be paid out of the tobacco fund. /(/. Sec. 47. If any owner or owners of tobacco, or his, her or their agent or agents, shall believe that any of their tobacco has been in- correctly sampled, and shall so notify the inspector, before the sale thereof, and within ten days of the date of its inspection, the matter shall be referred to a committee of arbitration, con- sisting of three persons, to be selected as follows : One thereof sliall 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 then have the power to require the said inspector, in charge of said hogshead or hogs- heads of tobacco, to have the same re-opened, and if it shall he found that the sample does not correctly represent said to- bacco, the said committee or majority of them, shall select a sample which shall correctly represent it, and the new sample shall be substituted, in the place of the rejected sample, at no cost to the owner or owners ; provided, that if said sample shall be found by said committee to properly represent said tobacco, then the cost of the re-opening said tobacco shall be paid by the owner or owners of the same, and said costs shall be one dollar per hogshead. Id. Sec. 48. The governor is authorized at the expiration of the term for which tobacco warehouse No. 2 was rented by the governor, under the authority vested in him by the acts of the general assembly of 1892, chapter 41. to rent the said warehouse for another period, not exceeding four years, and upon such terms as he shall deem proper and beneficial to the State, and continue to rent the said warehouse from time to time and for such terms periods not exceeding four years for any one term, and upon such terms as he shall deem proper and beneficial to the State. The governor is also authorized to rent from time to time the tobacco warehouse known as "old No. 2 warehouse," upon such terms and for such time as he shall deem proper and beneficial to the State; but in the contract of renting said warehouse it MARYLAND DECISIONS. 387 shall be stipulated that possession thereof shall be delivered to the State upon such day as shall be named by the governor in a notice in writing given by him to the person to whom the ware- house shall be rented, not less than sixty days before the day named for the delivery of said possession; the contract of rent- ing hereinbefore mentioned shall be submitted to and approved by the attorney-general, and shall contain a stipulation that the said warehouse shall not be used for the purpose of the in- spections of tobacco that would be in conflict with the tobacco inspection warehouses. Id. Sec. 49. In Art. 81 pertaining to Revenue and Taxes under the head- ing of Distilled Spirits it is provided : It shall be the duty of all distillers, warehousemen and others to exhibit all necessary information on oath if required, to the appeal tax court of Baltimore city, the several boards of county commissioners in the respective counties where distilleries are situate, and to any authorized officer proceeding to execute a dis- traint or to collect the tax imposed under this sub-title; and a failure so to do upon demand made shall be deemed a misde- meanor and subject to indictment, and upon indictment and con- viction shall subject the offender to a fine of not less than fifty dollars nor more than five hundred dollars. Id. Art. 81, Sec. 225. Any warehouseman, custodian or agent paying the tax on distilled spirits herein provided for shall have a lien upon the distilled spirits covered by such tax. Id. Art. 81, Sec. 226. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — When not countermandahle: — Where money or goods are delivered to a bailee to be delivered to a third person, the bailment is not countermandahle after the third person has assented thereto, if there is a valual)lc consideration for the bail- ment. Creacjer 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 l)estowal of reasonable care, held, on ap- NoTE. Corporations ma/ be found for the purpose of conducting the warehouse buiiness under the provisions of art. 23, sec. 14 tt seq. Maryland Public GenertJ Laws. 388 MARYLAND DECISIONS. peal, lo have been correct : "The said defendant was bound to use reasonable care in storinj^- said goods in a place of safety according to their kind, and then by the jiractice 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 payment of any loans which it might, at subsequent times make to the plaintiff, the court in- structed the jury that the bank would be responsible if the jury found from the evidence that the bonds had been stolen in con- sequence 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 ])roperty belonging to themselves. That the care and diligence should be proportional to the consequences likely to arise from any improvidence on the part of the defendant, and that the jury might take into consideration whether it would have been a proper precaution to 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 of- fered 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 instruction held correct. Third National Bank v. Boyd, 44 Md. 47. Bailment — Bailee cannot deny bailor's title: — A bailee is estopped to deny his bailor's title in any form. McCullough V. Roots, 19 How. 349. Conversion — Action at law: — A conversion simply creates a pecuniary liability, and an action in equity 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 MARYLAND DECISIONS. 389 resorted to. Cecil National Bank v. Thurher et al., 59 Fed. Rep. 913; Buzard v. Houston, 119 U. S. 347. Burden of proof — Presumption of negligence when goods damaged or not returned on demand: — When the bailor has shown he stored the goods in good condition and that they were returned to him in a damaged state or not returned at all the law presumes negligence on the part of the bailee and casts up- on him the burden of showing that he exercised such degree of care as was required by the nature of the bailment. Security Storage & Trust Co. v. Denys, 86 Atl. 613. H. Storage contract — Violations of owner's directions as to ship- ment of goods — Warehouseman liable: — When plaintiflf direct- ed defendant warehouseman to ship his goods in a forty foot car and over the Pennsylvania Railroad and the warehouseman shipped plaintifif's goods in two small cars and over the Balti- more and Ohio Railroad the warehouseman was held liable for the resulting injury occasioned during the unauthorized trans- portation. Security Storage & Trust Co. v. Denys, 86 Atl. 613. Goods damaged by zvater — 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 sud- den rise in the river, the goods being damaged by water. It fur- ther appeared that the tide had been steadily rising all day and it was not until the water came with a rush that the defendant at- tempted to remove the plaintiff's goods. It was held that the de- fendant was liable in tliat it had not exercised reasonable care in its efforts to preserve the goods. Merchants' & Miners' Transportation Co. v. Story, 50 Md. 4. Negligence — Instruction to jury: — In an action for damage by deterioration in the value of certain poultry in the cold storage warehouse of defendant, caused by flooding with water from a water main, held to be error to instruct the jury that if they found certain recited facts "then the law presumes that the dam- age to said poultry was caused by the negligence of defendant." Such an instruction was to declare a prima facie case to have been made out, and to shift the burden of proof from the plain- tiff to the defendant by presumption of negligence, from cer- 390 M AKNI.ANI) Dl-.llSlONS. tain facts recited, as a matter t)f law. jiulj^inent for plaintiff re- versed and new trial ijranted. Baltimore Refrigerating etc. Co. V. Kreincr, 109 Md. 361. O. Same — Measure of damages: — In an action by the assignee of a warehouseman against an insurance company, on a policy cov- ering 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 are entitled to recover, then, in ascertaining the amount of loss or damages which the plaintiffs are to re- cover, 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, Clendening & Co. v. Prest. & 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 instruction held correct. Third National Bank v. Boyd, AA Md. 47. P. Insurable interest — IVarehouseman has: — The law is well set- tled 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 own- er. Hough, Clendening & Co. v. Prest. & Dir. Peoples' Fire Ins. Co., 36 Md. 398; Home Insurance Co. v. Baltimore Warehouse Co., 93 U. S. 527; London & N. IV. 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 poli- cies, and the insurance comj)anies issuing them are bound to contribute their respective proportion of the loss. Hough, Clen- MARYLAND DECISIONS. 391 Home Insurance Co. v. Baltimore Warehouse Co., 93, U. S. 527; Balto. Fire Ins. Co. v. Loney, 20 Md. 38. Q. Warehouse receipts — Negotiability — Bona fide holder pro- tected: — A warehouseman issued receipts for goods stored with him to one who represented himself as the owner of the goods, it appearing from certain tickets in the nature of bills of lading 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 had 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 w^arehouseman 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, sec- tion 1 of the Code construed. Farmers' Packing Co. v. Brown & Sons, 87 Md. 1 ; Tildeman v. Knox, 53 Md. 6i2. (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 endcted in 1876.) Same — Same — "Actual notice," what 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 in- terest in the goods, such statements held to be equivalent to ac- tual notice, and the assignee does not take the property clear of all equities. If. under 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, Leftzvich & Co. v. Meyer & Kross, 57 Md. 10. Same — Must be issued by zvarchuuseman: — 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 possession subject to the or- ;W12 MARM.ANl) DECISIONS. ilcr 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 i)romissory notes. State of Maryland V. Bryant. 63 Md. 66. R. Bills of ladinfi — Exemptions in: — Common carriers may, by special contract, limit their liability, as recognized by the com- mon law, where there seems to be reason and justice to sustain the limitation. McCoy & Parkhurst v. Eric & IVestern Trans. Co.. 42 Md. 498; Bankard v. B. & 0. K. R.. 34 Md. 197; Rail- road 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 comany 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 prom- ise 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 un- der 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' & Min- ers' Transportation Co., 78 Md. 1. Same — Parol agreement and parol proof: — The legal opera- tion of the contract contained in a bill of lading 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 & Apple- ton v. Miller, U Md. 348. MASSACHUSETTS LAWS. 393 CHAPTER XXI MASSACHUSETTS LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Massa- chusetts. It took effect October 1. 1907. Acts 1907, Ch. 582, p. 930. See also Supp. Revised Laws of Mass. 1902-1908, Ch. 69, p. 557, also this volume p. 1. Public warehousemen, how licensed : — The governor, with the advice and consent of the council, may license in any city or town suitable persons, or corporations established under the laws of the commonwealth and having their places of business within the commonwealth, to be public warehousemen. Such warehousemen may keep aiul maintain public warehouses for the storage of goods, wares and merchandise. They shall give bond to the treasurer and receiver general for the faithful performance of their duties in an amount and with sureties to be approved by the governor, and may appoint one or more deputies, for whose acts they shall be responsible. A railroad corporation which is licensed as a public warehouseman shall not be required as such to receive any proi)crty except such as has been or is forthwith to be transported over its road or to give sureties on its bond. Rev. Laws, Mass., 1902, Ch. 69, sec. 1. Action on bond of: — Whoever is injured by the failure of a public licensed warehouseman to perform his duty or by his violation of any of the provisions of this chapter may bring an action for his own benefit, in the name of the commonwealth, on the bond of such warehouseman. The writ shall be indorsed by the person in whose behalf such action is brought, or by some other person satisfactory to the court ; and the indorser shall be liable to the defendant for any costs which he may recover in such action, but the commonwealth shall iidI be liable for any costs. Id. sec. 2. 394 MASSACHUSETTS LAWS. Warehouseman to insure property, when: — Such ware- houseman shall, upon request in writing by a party placing prop- erty with him on storage, cause such property to be insured for whom it may concern. A railroad corporation which is such warehouseman may itself be the insurer. Id. sec. 3. Form of receipt: — Every such warehouseman shall give to each person who deposits property with him for storage a re- ceipt therefor, which shall be negotiable in form, shall describe the property, shall state distinctly the brands or distinguishing marks thereon, the rate of charges for storing it and the amount and rate of insurance thereon, and, if it is grain, the quantity and inspected grade thereof ; or, upon request, he shall give a similar receipt, non-negotiable in form, which shall have the words "not negotiable" plainly written, printed or stamped up- on the face thereof. Id. sec. 4. Transfer of title of goods stored: — The title to property which is stored in a public warehouse under a warehouseman's negotiable receipt therefor shall pass to a purchaser or pledgee by the indorsement and delivery to him of such receipt signed by the person to whom the receipt was originally given or by an indorsee thereof; and if so stored under a warehouseman's non- negotiable receipt, shall pass by assignment of such receipt when recorded on the books of the warehouseman issuing it. Id. sec. 5. Special provision for grain, etc. : — If grain or other property which is stored in a public warehouse is so mixed or intermingled that the identity of different lots or parcels cannot be accurate- ly preserved, the warehouseman's receipt shall give a valid title to so much of such grain or property as is designated therein, without actual separation or identification. Id. sec. 6. Warehouseman to keep books: — Such warehouseman shall keep books in which shall be entered an account of all his trans- actions relative to the storing and insuring of goods, wares and merchandise, to the issuing of receipts therefor and to the dis- position of proceeds of sales thereof under the provisions of this chapter. Such books shall be open to the inspection of any person actually interested in the property to which the entries relate. Id. sec. 7. Notice of licensees, etc., to be published : — The secretary of the commonwealth shall, at the expense of each warehouseman, MASSACHUSETTS LAWS. 395 give notice of his license and qualification, of the amount of the bond given by him and also of the discontinuance of his license by publishing the same for not less than ten days in one or more newspapers, if any, published in the county or town in which the warehouse is located; otherwise, in one or more newspapers published in the city of Boston. Id. sec. 8. Disposition of perishable property: — If a public warehouse- man has in his possession, in storage, upon a non-negotiable re- ceipt, property of a perishable nature, or which by keeping, will deteriorate greatly in value, or, by its odor, leakage, inflammabil- ity or explosive nature, will be liable to injure other property, or of a value which will probably be insufficient to pay the storage charges thereof, he may, after notice to the person in whose name the property is stored to remove said property and to pay the storage and other proper charges thereon, and the refusal or neglect of such person so to do. sell the same at public or private sale without advertising. If. on reasonable inquiry, such person cannot be found, the sale may be made without notice. The proceeds of the sale, after deducting the expenses thereof and the storage and other proper charges, shall be paid or credited to the person in whose name the property was stored, or if he cannot be found, to the treasurer and receiver general, who shall pay it over to the owner thereof upon proof of his title thereto within one year after its receipt by the treasurer. If such ware- houseman has made a reasonable effort to sell perishable or worthless property and has been unable so to do, he may dispose of it in any lawful manner, and shall not be liable for such dis- position. Id. sec. 9. Liability of depositor for charges: — If, from the sale or other disposition authorized by the preceding section, no pro- ceeds are realized or the proceeds are insufficient to pay the expenses of sale and the storage and other proper charges, the person in whose name said property was stored shall be liable to such warehouseman for all proper charges against such property or for such amount as equals the difference between the charges due thereon and the proceeds of such sale or disposition. Id. sec. 10. Sales to pay overdue charges: — A public warehouseman who has in storage any property for which a storage charge is 396 MASSACHUSETTS LAWS. at least one year o\er(lue. iiiax' sell the same by public auction after notice in writins:^ to the person in whose name it is stored that such property will l)e scld at a time and i-)lace specified in the notice unless the amount due iov storage, the advances made thereon and the expenses of advertisinji^ and sale are paid before the sale is made. From the proceeds he may retain said storage charges, advances made and expenses of advertising and sale. /(/. sec. 11. Service of notice of sale: — ^The notice required by the pre- ceding section shall be served by an officer authorized to serve civil process or by some other person by delivering it to the person in whose name such property is stored at the time of such service or by leaving it at his usual place of abode, if with- in the commonwealth, at least sixty days before the time of such sale ; 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. A return of service of such notice shall be made under oath. If the person in whose name such property is stored cannot, with reasonable diligence, be found within the commonwealth, such notice shall be published once in each of three successive weeks in a newspaper published in the city or town in which the ware- house is located, if any ; otherwise, in one of the principal news- papers published in the county in which such city or town is located, the last publication to be at least thirty days before the time of sale. Id. sec. 12. Disposition of proceeds of sales: — Such warehouseman shall, on demand, pay over the surplus of the proceeds of a sale authorized by section eleven to the person entitled thereto, but if it is not claimed within six months after such sale, he shall pay such surplus to the treasurer and receiver general and shall, at the same time, file with him an affidavit stating the name and residence of the person whose property has been sold, the articles sold and the prices obtained therefor, the name and residence of the auctioneer and a copy of the notice served or published with the return thereof. The copy of notice and re- turn so filed shall be admitted as evidence of the giving of the notice. The treasurer and receiver general shall pay it over to MASSACHUSETTS LAWS. 397 the owner tliereof upon proof of his title thereto within five years after its receipt by the treasurer. Id. sec. 13. Penalty for selling, etc., property deposited: — Whoever, with intent to injure or defraud, unlawfully sells, pledges, lends or in any other way disposes of, or permits or is a party to the unlawful selling, pledging, lending or other disposition of, any property stored in a public warehouse, without the authority of the person in whose name the same is stored, shall be punished by a fine of not more than five thousand dollars and by imprisonment in the state prison for not more than three years. Id. sec. 14. For forging, etc., warehouse receipts, etc.: — Whoever falsely makes, utters, forges or counterfeits or whoever permits or is a party to the false making, uttering, forging or counter- feiting of, a warehouse receipt, certificate or other instrument, or of the signature of a warehouseman or of an indorser or other person to an instrument used to pass or to give title to property stored in a public warehouse, shall be ])unished by a fine of not more than five thousand dollars and by imprisonment in the state prison for not more than three years. Jd. sec. 15. Penalty for disposing of receipt after attachment, etc.: — ■ Whoever, knowing that 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 attachment to the person to whom such receipt is indorsed, assigned or disposed of shall be punished by a fine of not more than five thousand dollars and by ini])risonment in the state prison for not mr)rc tlian three years, or l)y imprisonment in jail for not more than one year. Id. sec. 16. Proceedings in cases of detention or conversion of property by a public warehouseman, etc. — Court to determine rights of parties — Custody of goods, etc: — Whenever two or more pers(jn> claim any interest in i)roi)erty. or the proceeds or value of, or damages for the taking, detention or conversion of any property which is rjr has theretofore been deposited with any l)ublic warehouseman, or other depositary for hire, or with any pledgee as security for a \u;m, such bailee or pledgee may, either in any action against him f'T the recovery of said iHMpcrty, or for such proceeds, value, or damages, or as an original suit brought in the police, district or municipal court or before tiic 398 M ASSAl' 11 LSKTTS LAWS. trial justice within whose judicial district such property is sit- uated or was last helil h_\' such bailee or pledgee, tile a petition stating the names and residences of all known claimants, after such notice as the court may order upon said petition to all such claimants, and within such time after the return of such order of notice as the court shall allow, such claimant or claimants shall file in said court a statement in writing of their several claims, and if no such claim is so filed the claimant or claimants may he defaulted. The court shall hear and determine the rights and interests of the respective parties in and to such pro])- erty. proceeds, value or damages, and shall enter judgment ac- cordingly, and upon such final judgment may order such return or delivery of the property, and may award such execution or executions for damages or costs or both for or against the re- spective parties to such proceeding as justice may require. Fail- ure to comply with any such order for the return or delivery of such property may be dealt with as the court may direct. The goods may remain in the custody of the bailee or pledgee until the final judgment, and shall then be delivered in accordance with the order of the court. If the petition herein provided foi be filed in an action of replevin, any order for the return of the property replevied, or any part thereof, may be for the re- turn of such property to such party to said ])roceedings as may be adjudged to be entitled to the possession thereof; and if the order be not complied with, the' bond in such case may, by leave of said court, be put in suit, in the name of the obligee therein, but for the benefit of the party or parties entitled to said property, and in such suit the court may award judgment and execution in accordance with the respective interests of the parties thereto. Id. Ch. 173. sec. 38. as amended by act approved March 27, 1909. Acts and Resolves. Mass.. 1909, Ch. 227, p. 167 and further amended by act approved March 6, 1913, Acts and Resolves, Mass.. 1913. Ch. 228. Names of persons, etc., storing liquor in w^arehouses to be furnished to the licensing authorities: — Be it enacted, etc., as follows: Proprietors of storage warehouses shall furnish to the licensing authorities of any city or town, upon request of said authorities the names of all persons, firms or corporations storing liquor in their warehouses, and this information shall be for the use of the licensing authorities only. Act March 1, 1911, Ch. 77. Acts, 1911. p. 56. sec. 1. MASSACHUSETTS LAWS. 399 Proprietors of storage warehouses who refuse or neglect to furnish information as specified in section one shall be punished by a fine of fifty dollars. Id. sec. 2. Lists of personal property in storage warehouses, etc.: — Be it enacted, etc., as follows: Section 1. All persons, firms and corporations engaged in the business of storing or keeping mer- chandise in storage warehouses, shall, within ten days after a request therefor by the assessors of the city or town in which said property is so stored or kept, permit the said assessors to copy from their records a list of the names and addresses of all persons, firms or corporations who appear, on the first day of April in such year, to have any such property stored or kept in any such warehouse, but such persons, firms and corporations shall not be required to furnish lists of persons, firms or cor- porations which have property stored in warehouses which is composed of imported goods in original packages and owned by the importer, or of goods that have been received for export trade. Act May 21. 1912. Ch. 621, Acts, 1912. p. 626. Penalty: — Whoever refuses or fails to comply with the pro- visions of this act shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than ninety days. Id. sec. 2. Cold storage of food products — Certain terms defined: — The term "cold storage," as used in this act, shall be construed to mean the storage of articles of food at or below a temperature of forty degrees Fahrenheit in cold-storage or refrigerating warehouses. The term "cold-storage or refrigerating warehouse." as used in this act, shall be construed to mean an establishment employ- ing refrigerating machinery or ice for the purpose of refrigera- tion, or a place otherwise artificially cooled, in which articles of food are stored for thirty days or more at a temperature of forty degrees Fahrenheit or below. The term "article of food," as used in this act, shall be inter- preted to include fresh meat, fresh meat products, except in process of manufacture, fresh food fish, poultry, eggs and butter. An Ac{ to regulate the cold storage of certain food products. Approved May 27, 1912. took effect .September 1, 1912. Acts and Resolves, Mass., 1913, page 711, Chap. 652, Sec. 1. 400 MASSACHUSETTS LAWS. License, etc.: — No person, firm or corporation shall operate a cokl-storago or refrigerating warehouse without a license is- sued l\v the state board of health. Any person, firm or corpora- tion desiring such a license may make written application to the board, stating the location of its plant or plants. On receipt of the application the board shall cause an examination to be made of the sanitary condition of any such plant, and if it is found to be in a sanitary condition and otherwise properly equipped for the business of cold storage, the board shall cause a license to be issued authorizing the applicant to operate a cold-storage or refrigerating warehouse for the period of one year. The license shall be issued upon payment by the applicant of a license fee of ten dollars to the treasurer of the commonwealth. In case any warehouse licensed under the provisions of this section or any part thereof, shall be deemed by the state board of health to be conducted in an unsanitary manner, it shall be the duty of the board to close such warehouse or part thereof, until it shall he put in sanitary condition, and the board shall have power also to suspend the license in case the required changes are not made within a reasonable time. Every such licensee shall furthermore submit a ([uarterly report to the state board of health on a printed form to be provided by the board. The re- port shall be filed on or before the twenty-fifth day of January, April. July and October of each year, and it shall state the quantities of articles of food placed in cold storage during the three months preceding the first day of the said months, re- spectively, and also the quantities of butter and eggs held on the first day of the month in which the report is filed. Id. Sec. 2. Certain articles of food not to be placed in cold storage — Duties of the state board of health: — No article of food in- tended for human consum])tion shall l)e placed in cold storage if deemed by the state board of health to be diseased, tainted or otherwise unwholesome. It shall be the duty of the state board of health to inspect and supervise all cold-storage or refrigerating warehouses in this commonwealth, and to make such inspection of the entry of articles of food therein as the board may deem necessary to secure proper enforcement of this act. The members of the board, or its duly authorized agents, inspectors or employees, shall be permitted access to such establishments and all parts MASSACHUSETTS LAWS. 401 thereof at all reasonable times for purposes of inspection and enforcement of the provisions of this act, or of any other pro- vision of law relating to food products. The board may also appoint and designate such person or persons as it deems quali- fied to make the inspections herein required. Id. Sec. 3. Articles deposited to be marked, etc.:— All articles of food when deposited in cold storage shall be marked plainly with the date of receipt on the containers in which they are packed, or, if not packed in containers, on or in connection with the articles, except fish. Id. Sec. 4. Limit of time, etc. : — No article of food shall be held in cold storage within this commonwealth for a longer period than twelve calendar months, except with the consent of the state board of health as hereinafter provided. The state board of health may, upon application, grant permission to extend the period of storage beyond twelve months for a particular con- signment of goods, if the goods in question are found, upon ex- amination, to be in proper condition for further storage at the end of twelve months. The length of time for which further storage is allowed shall be specified in the order granting the permission. A report on each case in which such extension of storage may be permitted, including information relating to the reason for the action of the board, the kind and the amount of goods for which the storage period was extended, and the length of time for which the continuance was granted, shall be included in the annual report of the board. Id. Sec. 5. Marking of goods, etc.: — It shall be unlawful to sell, or to offer or expose for sale articles of food which have been held in cold storage without notifying persons purchasing, or intend- ing to purchase, the same that they have been kept so by the display of a sign marked, "Cold Storage Goods Sold Here," and it shall be unlawful to represent or advertise as fresh goods articles of food which have been held in cold storage. Id. Sec. 6. Articles released not to be returned, etc.: — It shall be un- lawful to return to cold storage any article of food that has once been released from such storage for the purpose of placing it on the market for sale to consumers, but nuthing in this section shall be construed to ])re\ent the transfer of goods from one cold- storage or refrigerating warehouse to another, provided that 26 40'2 MASSACliUSETTS LAWS. sih'li transfer i^ unt iii;uk' for tlio purixise of evading any pro- \ ision of tliis act. Id. Sec. 7. Marking of certain packages, etc. : — Broken eggs packed in cans, if not intended for use as food, when deposited in cold storage shall be marked l)y (he owners in accordance with forms prescribed by the state lx)ard of health, under the authority hereinafter conferred, in such a way as plainly to indicate the fact that they are not to be sold for food. Id. Sec. 8. Rules and regulations: — The state board of health may make rules and regulations to secure a proper enforcement of the provisions of this act, including rules and regulations with respect to the use of marks, tags or labels and the display of signs, and may fix penalties for the breach theregf. Id. Sec. 9. Penalty: — Any person, firm or corporation violating any provision of this act shall upon conviction be punished for the first offense by a fine not exceeding one hundred dollars, and for the second ofifense by a fine not exceeding five hundred dollars, or. if the offense is committed by a person acting either in his individual capacity or in behalf of a firm or corporation, by imprisonment for not more than thirty days, or by both such fine and imprisonment. Id. Sec. 10. Report of commission on cold storage of food, etc. — Distri- bution: — Resolved, That there be allowed and paid out of the treasury of the commonwealth a sum not exceeding four hun- dred and fifty dollars for printing, in an edition of three thou- sand copies, a bound report of the commission appointed to investigate the subject of cold storage of food and of food prod- ucts kept in cold storage, to be distributed as follows : one thousand copies for the use of the commission ; two copies to each member of the present general court ; two copies to the governor; two copies to the lieutenant governor and to each member of the council ; two copies to the treasurer and receiver general ; two copies to the auditor of the commonwealth ; two copies to the attorney-general ; two copies to the clerk of the senate and to the clerk of the house of representatives ; one copy to each of the legislative reporters in the senate and in the house of representatives ; and the remaining copies to be distributed by the secretary of the commonwealth in his dis- cretion. MASSACHUSETTS DECISIONS. 403 Resolve to provide for the printing and distribution of the report of the commission for the investigation of the subject of the cold Storage of food and food products. Approved April 3, 1912. Acts and Resolves, Mass., 1912, page 879, Chap. 38. Whenever eggs that have been in cold storage are sold at retail, or offered or exposed for sale, the basket, box or other container in which the eggs are placed shall be marked plainly and conspicuously with the words "cold storage eggs." or there shall be attached to such container a placard or sign having on it the said words. If eggs that have been in cold storage are sold at retail or ofifered or exposed for sale without a container, or placed upon a counter or elsewhere, a sign or placard, having the words "cold storage eggs" plainly and conspicuously marked upon it, shall be displayed in, upon or immediately above the said eggs ; the intent of this act being that cold storage eggs sold at retail or offered or exposed for sale shall be designated in such a manner that the purchaser will know that they are cold storage eggs. The display of the words "cold storage eggs," as required by this act, shall be done in such a manner as is ap- proved by the state board of health. An Act relative to the sale of eggs taken from cold storage. Approved April 25, 1913, Acts and Resolves. Mass., 1913, Ch. .x38. Sec. 1. Violation of any provision of this act shall 1)C inmished l)y a fine of not less than ten dollars nor more than five hundred dol- lars for each offense. Id. Sec. 2. DECISIONS AFFECTING W.AREHOUSEMEN B. Ordinary care: — A warehouseman is only obliged to bestow ordinary care in the custody of property intrusted to him. Cox V. Boston fr P. R. R. Co., 10 Met. 472; Aldrich v. Boston & Worcester R. R. Co., 100 Mass. 31. Same — Failure to deliver — Need not sliozv precise 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 orcnrrcd without a want of ordinary care or diligence on his part, l)Ul not necessarily the precise manner in which the loss occurred. Lichtenhein v. Boston & P. R. R. Co., 11 Cush. ■104 MASSACHUSETTS DECISIONS. 70; President. DIrrrtors. etc.. Conivay Bank v. American li.vpress Co., 8 Allen. 512. ■ Same — Liability coextoisi^'e to f^ossessio)! — Rule stated : — The obligation of warehousemen to exercise ordinary care for the protection and safety of goods committed to their custody de- pends upon and is coextensive with actual and continued posses- sion. If they lose that possession through any omission of the duty thus attaching to them in that relation, they arc 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. ll^estern R. R. Corporation. 16 Gray, 132. Conversion — Delivery to officer — Attachment does not consti- tute: — The defendant, a warehouseman, opened the door of a compartment in' his warehouse in which the property of the l)laintiiT was stored and allowed an officer to attach the same. This was held in nowise to constitute a voluntary surrender of the property by the warehouseman, and further that the ware- houseman, in allowing this attachment to be made, was not guilty of conversion. Clegg v. Boston Storage IVarehouse Co.. 149 kass. 454. Conversion — Warehouseman zvith power to receive offers not authorised to sell — Lien — Innocent purchaser: — The plaintiff at the request of one J., who was a commission merchant and ware- houseman, made certain advances to J- upon wool consigned to him. The plaintiff received from J. the receipt from the rail- road for the wool and never surrendered possession 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 liad the wool removed to another warehouse, but he did not demand of J. a bill of lading or oth.er proof of title and he knew J. was engaged in business as a warehouseman. Upon the above state of facts it was held that the plaintiff's rights as consignee in the wool MASSACHUSETTS DECISIONS. 405 were not lost by placing the same in the warehouse 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 deposit of it in good faith with him as a warehouseman, with authority to negotiate sales as a broker, to be concluded by plaintiff, 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 mer- chandise for the purpose of sale," within the meaning of c. 54. sec. 2, Gen. Stats., nor was J. "a person intrusted with mer- chandise, and having authority to sell or consign the same" with- in the meaning of c. 54. sec. 3, Gen. Stats. Finally that the plaintiff' held a valid lien against the property ; that defendant having sold the same this amounted to a conversion thereof, for which the defendant was liable to the plaintiff. Thatcher v. Moors, 134 Mass. 156. Bonded tvarehoitses — Private zvarehouse — "Warehoused" con- strued: — The plaintiff, an importer, brought an action against the defendant, as collector of the port of Boston, for money paid to the defendant to whicli the latter was not entitled, under the warehouse law. It apeared that when a quantity of molasses, 'consigned to the plaintiff' arrived at the port of Boston, the public warehouses at that 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 molasses 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 were stored govern- ment officials were in charge thereof, but in tlie 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 accordingly paid to him. The court held that from the agreed statement of facts, which was sub- stantially as above, the action could not be maintained. Atkins v. Peaslee, 1 Clif. 446. Same — Withdrawal through fraud — Misdelivery of spirits — Forfeiture: — It appeared that spirits had been fraudulently with- •♦^^^ MASSACHUSETTS niHlSloNS. drawn I'rmn a ii^ovornnicnt warehouse, without the payment of the internal rexenue tax. ami had heen mixed with other spirits. In an aetiiMi hy the government ai^ainst the spirits, it was eon- tended, in the hehalf of one of the claimants, that as the collector had surrenderetl the spirits upon the production of a permit, the delivery had been made with proper authority. But, as it ap- peared that such permit had been obtained by fraud, it was Jicld 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 with- drawn from the bonded warehouse and other lots belonging to the claimants, so that they could not l^e distinguished, the United States were entitled to a forfeiture of a fair proportion of the mixture, even though the mixture might have been innocently made. United States v. Two Hundred and Set'cnty-eicjUt Barrels of Distilled Spirits, 3 Clif. 261. H. Lien for storage charges — Partial delivery — Lien on remainder for full storage charges: — The plaintifif, the owner of goods, shipped the same by a common carrier to one who intended to purchase them, l)ut 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 liad done so. Subsequently an arrangement was made be- tween 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 surrender 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 ; A^'^^e' Haven & Northampton Co. v. Campbell, 128 Mass. 104. Storage charges — Evidence: — Goods were left on storage in a certain building of plaintiff's and the evidence tended to show that plaintiff could and did give defendant the right to store them there and that defendant promised to pay for such storage. There was also evidence as to defendant's liability for cost of removal. Held: the weight of the evidence was for the jury, MASSACHUSETTS DECISIONS. 407 and verdict and judgment for plaintiff for the storage charges was affirmed. Call ill v. Phelps. 198 Mass. 332. Same — Special contract — IVarehouseman liable: — Plaintiff stored with defendant warehouseman a large quantity of nerve beverage and ginger ale. a part of which were found to have become frozen while in the warehouse, and thereby damaged. Conflicting testimony as to the terms of the oral contract held properly submitted to the jury, which found that there was no neglect by defendant of their general duty as warehousemen, causing a loss, and also found there was a special contract be- tween the parties that the goods should not be allowed to freeze. \'erdict was rendered for plaintiff and the case affirmed on appeal. Phcnix Nerve Beverage Co. v. D. & L. IVliarf and Warehouse Co.. 189 Mass. 82. K. Trustee process — Replevin: — Goods were deposited by plaintiff with defendant warehouseman who was served with trustee process. Defendant refused to deliver goods to plaintiff' on de- mand and plaintiff rcplevined them. Held: the effect of the trustee process was to attach the goods and until it was dis- charged, defendant was bound to hold them subject to any judg- ment which might be obtained. The trustee was not bound to decide at its peril whether they were or were not exempt from attachment. Although not in the hands of an officer, the goods were in effect in the custody of the law and ])laintiff could not replevy them. Cushman v. Boston Storage Warehouse Co.. 207 Mass. 407. Same — Warehouseman not liable for refusal to deliver to owner: — Plaintiff delivered to defendant, a common carrier, certain boxes, barrels and trunks containing household goods, apparel and other articles, and also a sewing machine, to carry to his office and keep for her. The goods were attached on trustee process, and defendant consequently refused to deliver them to plaintiff upon a general demand by her for them. In an action for conversion it was held the goods having been attached in his hands, the defendant was bound to keep them, so that if charged as tru.stee he could deliver them to the officer on execution, and in the absence of collusion he could not be deemed guilty of conversion. The demand being a general one, 408 ^rASs.\cIl^sl•:TTS decisions. defendant properly treated it as a demand of all the articles, whether exempt or not. Defendant mi.e^ht not he excused from deliveriuijf under a jjeneral demand, articles like a sewing machine, having a separate identity, easily distinguishahle from the others, and clearly exempt from attachment. Cornel! v. MaJwncy, 190 Mass. 265. Same — Bank receiving trunk for safe keeping, not liable nnder: — A trunk was placed in the vault of a bank merely for safe keeping. Its contents were never known to the officers of the hank and they had no right to open the trunk. Held, that as the trunk and its contents could not be lawfully separated l)y the officers of the bank, and as they are not chargeable in trustee process by reason of its contents, they are not so charge- able either in respect of the trunk or its contents. Bottom V Clarke, 7 Cush., 487. M. Effect of pledge — Possession of 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; Macomher v. Parker, 14 Pick. 497; Walcott v. Keith, 2 Foster, 196. N. Loss b\ 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 con- sumed the warehouse and its contents, the evidence showed that the employees of the defendant were present during the fire and might, with safety to themselves, have rescued property be- longing to the plaintifif. it was held that the warehouseman was not liable; that it was no part of the duty of the employees of the defendant to attend to the removal of goods from the ware- house in the case of fire at night. They were under no obliga- tion to be present during the fire and their voluntary attendance imposed 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- MASSACHUSETTS DECISIONS. 409 ployees of the defendant. Aldrich v. Boston & JVorcester R. R. Co., 100 Mass. 31. Same — Carrier liable as zvarehouseman — ]Vhen Public Stat- utes, chapter \\2, section 214, not applicable: — The defendant, a common carrier, was sued in tort by the plaintifif for the loss of his goods, which were destroyed, while in a freight house belonging to the defendant, by fire communicated from a locomo- tive of defendant. It appeared that the goods had been carried by the defendant for the plaintifif and that the transit has termi- nated. The court held that the action could not be maintained under Public Statutes, chap. 112. sec. 214. The goods of the plaintifif having been destroyed while in the possession of the defendant pursuant to a contract made between them, the plaintifif must seek his remedy under such contract. Bassctt v. Connecti- cut River R. R. Co., US Mass. 129. Same — Same — Same — Property still held under contract for carriage: — Where, 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 plaintifif 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. Misdelivery — Change of ownership in ivarehouse — Goods in wrong name: — A suit was instituted against a warehouseman who had purchased a warehouse from one previously engaged in the business and who took an assignment thereof, together with a list of all the property in the warehouse and the names of the several owners thereof. Tt ai)peared from the evidence that there was a mistake made in such list and goods which, in reality, belonged to A. were therein stated to belong to IT. 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 1)y 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 warehouse- man was not liable to the owner therefor. Parker v. Lombard and another, 100 Mass. 405. Pleading — Burden of proofs-Instruction to jury: — In an action against a carrier, charging it with liability as a warehouse- •11'' MASSAl lirSKITS DECISIONS. man. the defeiuhints alleged that the goods had been fraudu- lently abstracted from their custody. The judge ruled that to maintain the action, it was only necessary for the plaintiff, in the first instance, to show the receipt of the goods by the defend- ants 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 affirmatively 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 matter, the defendants would not be answer- able 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 resi)onsible. On appeal the above ruling held correct. LiclitciiJiciii v. Boston cr Providoicc R. R. Co.. 11 Cush. 70. Same — Burden of proof on plaintiff: — The plaintiff alleged that the defendant 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 negli- gence. This instruction held correct on appeal. Lamb v. West- ern R. R. Co.. 7 Allen. 98; Roberts v. Gurney, 120 Mass. 2>Z; Willett et al. v. Rich et al.. 142 Mass. 356; Murray v. Interna- tional Steamship Co., 170 Mass. 166; Gay et al. v. Bates, 99 Mass 263. Same — JVhcn burden of proof on warehouseman — Where declaration alleges demand and refusal hut not negligence: — The plaintiff sued the defendant, a railroad corporation, alleging that it was liable as a warehouseman, that the property had been re- ceived by it and, upon demand, redelivery had been refused. In the answer the defendant admitted that it received the prop- erty, and alleged that without any neglect, default, or careless- ness whatever on its part, the same was stolen from its ware- house. Upon these pleadings it was held, on appeal, that this form of declaration imposed a duty and burden upon the defendant who had put in special matter in defense of the action. MASSACHUSETTS DECISIONS. 411 The case was clearly distinguished from Lamb v. Western Rail- road Corporation, 7 Allen. 98. in that the allegations of the dec- laration were materially different. In the present 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 was upon the party alleging such new matter — the defendant. Cass v. Boston & Loivell R. R. Co., 14 Allen. 448. Same — Warehouseman need not shoiv 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 any negli- gence or want of care on his part. Lichtcnhci>i 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 the warehouse, held, not admissible in evidence. Gay ct al. v. Bates, 99 Mass. 263. O. Damages for loss of property — Right of consignee to recover: — A consignee of merchandise is entitled to recover full damages, and is responsible over to his consignor for any balance remain- ing after satisfying his claims upon tlie property. Thacher v. Moors, 134 Mass. 156: Ullman v. Barnard, 7 Gray, 554. Same — Measure of damages — Ordinary ride: — 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, \?>A Mass. 156. P. Loss b\ fire — Burden of proof on plaintiff to shozv negligence: — An instruction to the jury that the burden of proof was on the plaintiff to satisfy them that the fire was due to defendant's 412 MASSAniUSETTS DECISIONS. negligence was correct. Cox v. Central Vermont R. R., 170 Mass. 129. Same — Testimony showing intoxication of watchman, receiv- able: — It was held competent in an action against a warehouse- man for the loss of goods destroyed by fire, to show that the night watchman employenc — Negotiability: — A hill of lading, ihouf^^li not strictly a negotiable instrnincnt, like a bill of exchange, is the representative of the property itself and is the means by which i)roperty may be transferred in a manner equivalent to an actual delivery of the property. Forbes et al. v. Boston & Lozvell R. R. Co. 133 Mass. 154. Same — Not a "negotiable iiistrniiieiit" : — 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 Ver- mont R. R. 170 Mass. 129; Stollenzverck v. Thacher, 115 Mass. 224; Finn v. Western R. R., 112 Mass. 524. Same — As collateral: — One who holds a bill of lading as col- lateral 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 & Lozvell R. R. Co., 133 Mass. 154; Chicago National Bank v. Bayley, 115 Mass. 228; DeWolf v. Gardener, 12 Cush. 19; Dows v. National Ex- change Bank, 91 U. S. 618. Same — 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 appeared 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 wdiich he was a director, as security for a large loan made to him by the bank, he being present at the directors' meet- ing which authorized the loan. It was shown that the bank acted in entire good faith in the matter. It was attempted, by the plain- tiff, to impute the fraud of the consignee to the defendant bank. It was held that this could not be done, and judgment was ac- cordingly given for defendant. 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 of loss must be given within thirty days, the court held that the burden of proof was on the defendant to show that such stipulation was a just and reasonable one. Carriers may, by stipulation in bills of lading, limit their common-law liability if the effect is not MASSACHUSETTS DECISIONS. 4l5 to relieve them of the consequences of their own neghgence. or that of their servants, and the contracts are, in themselves, just and reasonable. Cox v. Central Vermont R. R., 170 Mass. 129; Leivis V. Smith, 107 Mass. 334; Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397; Bank of Kentucky V. Adams Ex. Co., 93 U. S. 174; Hoadley v. Northern Trans- portation Co., 115 Mass. 304. 4U) MICHIGAN LAWS. CHAPTER XXII MICHIGAN LAWS PERTAININC TO WAREHOUSEMEN The Uniform \\'arehouse Receipts Act is in force in Michi- gan, except sections 57, 61 and 62 vvliich liave been omitted. Ap- 7^7. Howell's Am. Stats. 1913. Vol II, Ch. 42, p. 1316. Also this volnme p. 1. Who deemed to be a warehouseman: — The People of the State of Michigan enact: That every person, firm, company, as- sociation, warehouse company or other corporation, lawfully en- gaged in the l)usiness of storing for hire goods, wares, mer- chandise, 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, sec. 5030. Lien for storage charges, etc.: — Every warehouseman shall have a lien on all goods, wares, merchandise and other personal property deposited and stored with him by the owner thereof or by any person with the owner or owners' knowledge or assent, for his storage charges and for all moneys advanced by him for cartage, labor, insurance, weighing, coopering and other neces- sary 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. sec. 5031 as amended by act March 31, 1909. Pub. Acts, Mich. 1909, ch. 24, sec. 2. 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 payment of storage charges, said warehouse- man shall have a lien upon the portion left for storage and for MICHIGAN LAWS. 417 expenses paid as above on the whole. Compiled Laws, Mich. 1897. sec. 5032. Warehouseman to have a lien on property for advanced charges — When not liable for damage to property: — Wher- ever, 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 property 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 mav 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, which in- jury 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 a ware- houseman. Id. 5033. Lien on property: — Whenever any warehouseman 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 tlie amount of said loan shall be specified in or indorsed on the warehouse re- ceii)t given for said property, said warehouseman shall have a lien on said property for the amount of said advance or loan and interest, and this lien shall l)e good as against any assignee of said receipt, and as against every subsequent purchaser or in- cumbrancer rif said ])ro])erty. Id. sec. 5034.. Lien shall be paramount to that of a chattel mortgage — Right of mortgagee: The lien of a wareliouseman for cus- Kjniary storage charges, and for necessary exi)enses i)aid in ref- erence to the stored property, as above specified shall be para- mount 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 dejirive the mortgagee of the right wliitli he might otherwise have of taking possession of the goods under his mort- 27 418 MICTIIflAN LAWS. yage. upon paying the charges up [o the date of taking such pos- session. Id. sec. 5035. Record of property to be kept — Receipt: — Every ware- houseman shall keep a record book, in which shall be entered immediately up(Mi its receipt, a description of all property de- posited with him for storage, including the brand or distinguish- ing marks on such property, together with the date of the recep- tion of said property and the name and address 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. sec. 5036. Receipts negotiable — Original receipt to be surrendered, when — Proviso as to "non-negotiable receipts": — Warehouse receipts shall be negotiable, and may be transferred by indorse- ment and delivery thereof, and said indorsement may be either in blank or to the order of another. Such indorsement shall be deemed to be a warranty that the indorser has good title and law- ful authority to sell the property named in such receipt sub- ject, however, to the lien of the warehouseman for freight and charges on said property. No property covered by such receipt or voucher shall be delivered by said warehouseman except on the surrender and the cancellation of said original receipt or voucher ; or in case of partial sale or release of the said prop- erty, by the written assent of the holder of said receipt or voucher indorsed thereon : Provided, That all warehouse receipts or vouchers which shall have the words "non-negotiable" plainly written, ])rinted or stamped on the face thereof shall be exempt from the i)rovisions of this section. Id. sec. 5037. 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 there- of, unless such property shall have been actually received into store or upon 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. sec. 5038. Receipt not to be issued as security for money loaned: — No warehouseman shall issue any receipt or voucher for any per- sonal property to any i)erson. persons or corporation as security MICHIGAN LAWS. ^19 for any money loaned or for other indebtedness or indemnity, unless such property so receipted for shall be, at the time of issu- ing 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 incumbered by prior lien, then the character, extent and amount of that lien shall be fully set forth and explained in the receipt. Id. sec. 5039. Duplicate receipt: — No warehouseman shall issue any second or duplicate receipt for any goods, wares, merchandise or other personal property while any former receipt or voucher for any such property as aforesaid, or any part thereof, shall be out- standing and uncancelled, without writing or stamping in ink across the face of the same "duplicate." Id. sec. 5040. Return of receipt: — No warehouseman shall sell or incum- ber, ship, transfer, or in any manner remove beyond his immedi- ate control, any goods, wares, merchandise, or other personal property for which a receipt shall have been given by him as aforesaid, whether received for storing, .shipping, grinding, manufacturing or other ])urposes. without the return of sucli receipt. Id. sec. 3041. Penalty for violation — Right of recovery: — Any warehouse- man who shall willfully violate any of the provisions of this act. except as hereinafter provided for in section twenty-seven. shall be deemed guilty of a misdemeanor, and ui)on conviction thereof shall be ])unished by a fine not exceeding 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 impri.sonmcnt in the discretion of the court, and every person or persons aggrieved by the violation of any of llie provisions of this act may have and maintain an action at law against the per- .son 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. sec. 5042 as amended by act March 31, 1909, Pub. Acts. March 1909, ch. 24, sec. 13. When goods may be sold — Proviso :^Kvery warehousenrm who shall have had in his possession any goods, wares, merchan- •*-0 M u ii1(;aN laws. disc or other personal uroprrly, by \ irtiic of any ajj^reenicnt or warehouse reoei])! for the storatijo of the same, on wliicli, or any part thereof, shall he due one year's storage, may at any time thereafter proceed to sell said property in the manner pro- \ ided in this act : Pnn'idrd, liowcvcr. 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 ad\anced the freight charges, and said freight charges shall not he repaid within three months, he may proceed to sell said property at any time after said period of three months. Compiled Laws, Mich'. 1897. sec. 5043. Notice of sale of property — How served: — Before any such sale be made, at least thirty days' written or printed notice shall be given to the person or persons in whose name or names such property was stored, notifying him or them of the default in pay- ment of such storage charges or advances, if made on said prop- erty, and to pay the arrears or amount due. and in case of default in so doing that such goods, wares, merchandise or other per- sonal 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 warehouse- man, with his address, such notice shall be given to such trans- feree as well as to the ])erson storing the goods. Id. sec. 5044. Notice of sale to be published in newspaper: — Before any such sale shall be made, notice thereof shall also be given by pub- lication 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 specify 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. sec. 5045. Time and place of sale — Proceeds of sale: — Such sale shall be by public auction to the highest bidder, and shall be held be- MICHIGAN LAWS. 421 tween the hours of nine in the forenoon and six in the after- noon, and may be held either at the warehouse or other place of deposit of said property. From the proceeds of sale, said ware- houseman may retain his charge for storage of the property and any advances made thereon by him, and interest, and the ex- penses of advertising and sale. Said property may be sold in bulk or in parcels, according to the discretion of the warehouse- man, with the view of obtaining as large a price as possible for the same. Id. sec. 5046. Record of sale to be kept — Surplus of sale to be paid to county treasurer: — Such warehouseman shall make an 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 ex- piration of said thirty days, 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 resi- dence, 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- lished notice. Id. sec. 5047. Statement to be filed: — The county treasurer shall make ai? entry of the amount received by him and the time when received, and shall file in his office such statement so delivered to him Ijy said warehouseman. Id. sec. 5048. 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, fur- nish satisfactory evidence to the treasurer of the ownership of such pro|)erty, he shall receive from such treasurer the amount so flcijosited with liim. Id. sec. 5049. Amount to be deposited: 1 1' the amount so de])osite(l witli any c(junt)- treasurer is not claimed by the owner thereof, or his legal represenlati\es, within the said six years, the same shall belong to the county and shall be credited to the general fund thereof. Id. sec. 5050. 122 MUlllCW LAWS. Perishable property may be sold: — Property of a perishable kiiul aiul siihjcol to decay by keeping, consigned or left for stor- age in the manner before mentioned, if not taken away within thirty days after it is left, may be sold after giving ten days' notice thereof in the manner above provided, but the sale shall be contlncted and tiie ])r(K-eeds of the same api)lied in the man- ner before provided in this act : Proi'idcd, howciu-r. That any property in a state of decay, or tliat is manifestly liable immedi- ately to become decayed, may be smiimarily sold without notice. The owner of such property shall be liable to said warehouse- man, for any excess of freight and' storage charges above the amount realized from the sale of said ])roperty. /(/. sec. 50.S1. Warehouseman may replevy goods after delivery: — Any warehouseman wlio has parted with his possession to stored ]M-operty, through fraud or mistake, to any person not entitled to the possession of the same, may after demand maintain an ac- tion of replevin for the same, or, if the property can not be found, an action of assumpsit or trover against the person con- verting or removing it. In case of replevin, if there was no fraud in oljtaining such possession, the jilaintiff shall first tender to the defendant the freight or other proper charges which may have accrued at the time of the demand of possession. Id. sec. 3052. 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 personal property shall be taken from the possession of any warehouseman, 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 ware- houseman 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 transferee 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 ware- houseman shall not in any way be liable on account of said suit to said owner or transferee of said property, or to 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 MICHIGAN LAWS. 423 the said goods, wares, merchandise and other personal property from any person unlawfully detaining the same, or for damages against any person unlawfully taking the same. Id. sec. 5053. Warehouseman not to be responsible for damages caused by fire: — No warehouseman shall be held responsible for any loss or damage to property by tire while in his custody, pro- vided reasonable care and vigilance be exercised to protect and preserve the same. Id. sec. 5054. When owner, mortgagee, etc., may examine property :- All persons owning property or who may be interested in the same by way of chattel mortgage, contract of sale, or where property has been sold on lease, when stored in any public warehouse, at all times during ordinary business hours, shall, on production of either the warehouse receipt, chattel mortgage, contract of sale, lease, or any other written instrument showing that said person is interested in said property so stored, be at full liberty to examine such property, and all proper facilities shall be extended to such person by the warehouseman, his agents and employes for such examination. Id. sec. 5055 as amended by act March 31. 1909. Pub. Acts March 1909. ch. 24, sec. 26. Refusal, when a misdemeanor — Per diem penalty: — Any warehouseman who shall refuse any person the right to exam- ine property stored in his warehouse and who shall not extend to such person or persons proper facilities for so doing, either by himself, his agents or employes, when such person or per- sons have a lawful right by the terms of section twenty-six of this act so to do, shall be deemed guilty of a misdemeanor, and upon conviction thereof before any court of competent jurisdic- tion shall be jmnished by a fine of not exceeding twenty-five fiollars in amount or by imprisonment in the county jail not ex- ceeding ninety days, or by both such line and ini])risonment in the discretion of the court ; anrl every day said warehouseman shall so refuse shall be deemed a distinct and separate ofifense and shall subject said warehousnian to the penalty herein pro- vided for. Pub. Acts Mich. 1909, ch. 24, sec. 27. Warehouse companies — Authority to incorporate: — The peo- ple of the state of Michi(/an enact: That any live or more per- sons, residents of this state, may associate themselves together 424 MICHIGAN LAWS. as a body corporate, for the purpose of construcliiif;. owning and controlling warehouses for the storage of grain and other com- modities, ronii^iled Laws Mich., 1897. sec. 6886. Conditions — Affidavits required: — Such persons shall, under their hands and seals, make and subscribe to a certificate, which shall specify: First, the name and business of said associ- ation; second, the amount of the capital stock thereof, and the amount of cash capital actually i)ai(l in ; third, the 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 niunbers of shares held by each person; fifth, the amount of all property, real and personal, that may be held by such corporation ; sixth, the term of the existence of said corporation, not to exceed thirty years; Which certificate shall be verified by the affidavits of the per- sons subscribing the same, and 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 lo- cated. Id. sec. 6887. 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 declared 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 accordance with the provisions of law at the time such gift, grant or devise shall take efifect. 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 ])roperty 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. sec. 6888. Right to build, and receive grain, etc., on storage:— Any corporation formed under the ])rovisions 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 ac- MICHIGAN LAWS. 425 cordance with the preceding section, and to receive for storage therein grain and other commodities, to tix the price for such storage, and to make all necessary rules and regulations for the management of its said business. Id. sec. 6889. 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 corporation, at such time and place as they may appoint, by giv- ing notice thereof, by publishing 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 before the time appointed for such meeting ; at which meet- ing, or at any adjourned meeting thereof, the stockholders of said corporation may elect such officers of said corporation as they shall deem necessary for the proper management of the property and business of said corporation, and may also make all necessary by-laws and regulations for the proper manage- ment of their affairs : Provided, That said by-laws and regula- tions shall be in conformity witli the provisions of chapter seventy-three of the compiled laws relative to corporations. Id. sec. 6890. 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 ai)|)licablc thereto, fd. sec. 6891. Disposition of unclaimed property — Description and date of reception of property to be entered in certain cases: — Whenever any personal i)ro]:)erty shall be consigned to, or de- posited with any forwarding merchant, wharf keei)er, warehouse- keeper, tavern keeper, or the keejjcr of any depot for the recep- tion and storage of trunks. l)aggage. and other personal prop- rty, such consignee or bailee shall inimedately cause to be entered in a book to be provided and kept by him for that pur])ose, a description of such prn])erty. with the date of the reception there- of. Id. sec. .=^727. When notice to be given to owner by letter: It' such \no\)- erty shall not ha\e been left with such consignc or bailee for the j)urpose of being forwarded or nihcrwisc disposed of accord- ing to directions received by such consignee or bailee, at or be- 42i . MlCliiGAN LAWS. fore the time of the reception thereof, and the name and resi- dence of tlie owner of such property be known or ascertained, the person ha\ ing such property in liis custody shall immediately notify such owner by letter, to be directed to him, and deposited in a i)ost-of(ice, to be transmitted by mail, of the reception of such ] property. Id. sec. 5728. Notice when and how to be published: In case any such property shall remain unclaimed for three months after its re- ception as aforesaid, the person ha\ing possession thereof shall cause a notice to be published once in each week for four suc- cessive weeks in a newspaper published in the same county, if there be one, and if not, then in some paper published at the seat of government, describing such i)roperty. and specifying the time when it was so received, and stating that unless such prop- erty shall be claimed within three months from the first publica- tion of such notice, and the lawful charges thereon paid, the same will be sold according to the statute in such case made and provided. Id. sec. 5729. Proceedings if the property remain unclaimed: — 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 of such publication, the person having possession of the ])roperty, 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 iniblication of the notice, and whether the own- er of such property be known or unknown. Id. sec. 5730. 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 opened and examined in his presence, and a true inventory thereof to be made, and shall make and £innex to such inventory an order under his hand, that the prop- erty therein described be sold by any constable of the city or township where the same shall be, at public auction, upon due notice. Id. sec. 5731. 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 written notices thereof in three public places in the city or township, and to sell such MICHIGAN LAWS. *^'^ property at public auction for the highest price he can obtain therefor. Id. sec. d72>2. Return of constable: — Upon completing the sale, the con- stable making the same shall indorse upon the order aforesaid a return of his proceedings 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 execution. Id. sec. 5733. Disposition of proceeds, etc.: — From the proceeds of such sale, the justice shall pay the charges and expenses legally in- curred in respect to such property, or a ratable proportion to each claimant, if there be not sufficient for the payment of the whole; and such justice shall ascertain 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 pro- ceedings. Id. sec. 5734. 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 ( the charges and expenses incurred in respect to such property, as ascertained and paid by him. with 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. sec. 5735. 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 payment to him of any mon- eys arising from such sale, in the books of his office. Id. sec. 5736. When owner may receive amount deposited with treasurer: — If the owner of the property sold, or his legal representatives shall, at any time within five years after such moneys shall be de- posited in the county treasury, furnish satisfactory evidence to the treasurer of the ownership of such ])roperty. he or they shall be entitled to receive from such treasurer the amount so depos- ited with him. Id. sec. 5737. If amount not paid to owner, to be paid into state treasury: — If the amount so deposited witii any county treasurer shall 4-S MirilK.AN LAWS. not 1k' paid to such owikt or liis legal representatives within the sail! five years, such county treasurer shall pay such amount into the state treasury, to the credit of the general fund. Id. 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 twt) stories in height, where male or female help is em])loyed abo\e the second story in such l^uilding, to provide suitable ladders, or such other lire escapes as may be deemed necessary, for the escape of such help or other i)ersons occupy- ing such building, in cases of fire, as provided in section four of this act. Id. sec. 5534. Shops, etc., not to be kept open on the first day of the week, etc.: — No person shall keep open his shop, warehouse, or workhouse, 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, 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 mak- ing of nuitual promises of marriage, nor to the solemnization of marriages. And every person so offending shall be punished by fine not exceeding ten dollars for each ofifence. Id. sec. 5912. 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 fraudu- lently con\ert to his own use, or shall secrete with the intent to embezzle, or fraudulently use such goods, money, or other prop- erty, or any part thereof, he shall be deemed by so doing to have committed the crime of larceny. Id. sec. 11570. 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 proprietor 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 noi be guilty of larceny in relation MICHIGAN LAWS. 429 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 existing at the time of such act of conversion, to deprive the owner of his property therein and to use it himself ; further, that if the proprietor acting under the belief that he had a lien on the goods for his charges and that therefore he had a right to dispose of the same and did so under this belief that this action on the part of the proprietor would negative an intent ro deprive the owner of his goods. People v. Husband, 36 Mich. 306. Penalty for making fraudulent warehouse receipts: — If any warehouseman or forwarding merchant or any other person, or the agent or clerk of any warehouseman or forwarding mer- chant or other person, shall knowingly execute and deliver to any per.son a receipt or certificate purporting to be for flour, wheat. i)Ot or pearl ashes, or any grain, produce or thing of value, as being at the time of executing and delivering such re- ceipt in possession of such warehouseman or forwarding mer- chant, 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 l)e deemed guilty of a felony, and on coiuiction 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 discretion of the court; and sending or forwarding to a ]jerson 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. Compiled Laws, Mich. 1, ap])roved June 1, l')05. DECISIONS AFFECTING WAREHOUSEMEN B. Baihnoit and sale — Facts coustiiutiiuj halliiient — Trcnrr — Evi- dence as to usage: — An action of trover was brought against the defendaiU. a warehouseman, for the recovery of the value of certain wheat stored witli liim. The defendant had delivered to the plaintiff a large (|uantity of wheat and this action was brougiit for the recovery of a quantity still due the plaintiff, which allegation was denied by the defendant. Evidence was recei\ed of the usage whereby wheat so stored on similar re- ceipts, was mixed with other wheat of like kind and quality and that a delivery of the same wdieat is never expected, but only of a similar w'heat of the same quality. In the lower court, upon the above state of facts, judgment was rendered for the defend- ant on the ground that the plaintiff should have sought his rem- edy in assumf^sit, and not in trover, the transaction not creating a bailment l)Ut 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 never- theless constituted a Itailment and not a sale. Erwin v. Clark, 13 Mich. 10. Same — Same — Intention of parties in receipt construed — Us- age: — The plaintiff' delivered wheat to the defendants, mer- chant millers, and received a receipt therefor in the following terms : MICHIGAN DECISIONS. 435 "No. 96 820 bus. Crescent Mills. "Grand Rapids. Mich., March 26, 1878. "Received of William B. Ledyard by L. Byrne, 820 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 & Graff." The wheat was all stored, with plaintiff's knowdedge, in l)ins from which the defendants drew from day to day for purposes of their business and manufacture. 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 on 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 relation 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 ])resentation, and that this presum])tion could only !)e overcome by some act un- equivocal in its nature. Further, that usage can never vary the written stipulations of parties, though it may aid in the explana- tion of their terms and jjcrhaps add incidents in res])ect to which they are silent. Ledyard v. IJibbard et a!., 48 Mich. 421. Conversion — Action for — Statute of Limitations: — Plaintiff stored certain wheat with defendant and obtained a receipt there- for. About eighteen years thereafter plaintiff sued for the value of the wheat. Meanwhile the warehouseman had gone out of 43t) MUllir.AN DECISIONS. Inisiiioss. Held: Where a deniaiid is iieeessary to maintain a cause of aetii>n. such demand must be made within a reasonable time, which by analogy to the statute of limitations will be deemed to be six years. Freeman v. Jngcrson, 143 Mich. 7. H. /./(•;/ for charges — By statute extends to alt valid claims for storage, etc.. against the owner: — Under sec. 2, chap. 127, Laws of 1807, ( 2 Comp. Laws. sec. 5031 ), it was held that a warehouse- man has a valid lien for all claims which he may have against the oivner of property deposited with him for storage charges and for all moneys advanced by him for cartage, labor, insur- ance, weighing, coopering and other necessary expenses to or on such property. That, therefore, where goods had been re- moved from the warehouse and were afterward again deposited on storage, the lien for former storage charges would attach and that the warehouseman could hold such goods for storage charges and for other advances and charges mentioned in the statute. Kaufman v. Leonard, 139 Mich.. 104; following Still- man V. Kimberly, 121 N. Y. 393, aff'd 53 Hun., 53L M. Pledge — JVarehouse receipt — Issued against warehouseman's 07vn goods: — The defendant warehouseman issued to the plain- tiff national bank as security for the payment of a note, a ware- house receipt for a large quantity of wheat. In this receipt it was stated that the defendant held to the account of the plain- tiff wheat represented thereby, to be delivered in the wheat or its equivalent in flour upon the return of the receipt properly in- dorsed. It further appeared that at the date of this transaction the defendants were not only buying, selling, storing in their fac- tory and shipping wheat on their own account, but were also receiving into their mills wheat to be stored for others for which they issued the customary warehouse receipt. The court instructed 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 MICHIGAN DECISIONS. 437 was correct, that the contention made in behalf of the defend- ants that there was not a valid pledge made of the wheat on the ground that the plaintifif never had possession thereof, which was essential to a pledge, could not be sustained; that the ware- house receipt passed the title to the wheat represented thereby and that there was a valid pledge thereof. The court further lield that the mere fact that the receipt in question mentioned both number one and number two wheat did not constitute an indefi- niteness which would vitiate the pledge although the quantity of each kind of wheat was not mentioned in the receipt. And that in the absence of any specification of the quantity of each kind that was to be held, the legal construction would entitle the pledgee to an equal amount of each kind if it remained unmanu- factured. Merchants' & Mfgrs.' Bank of Detroit v. Hihbard et a/.. 48 Mich. 118. N. Negligence — Improper temperature — Exposure to other goods: — Defendant received a quantity of butter for storage under a contract exempting him from liability for damage from fire, water and other causes. In an action for damage to the prop- erty caused by too high a temperature, or by odor from stored fruit, it was held there was nothing in the receipt or conditions which relieved defendant from using due care and diligence in maintaining the proper temperature and in not exposing the property to the odor from fruits and vegetables ; that defendant was under obligation to preserve proper temperature and keep the property away from injurious odors. Rudell v. Grand Rapids Cold Storage Co., 136 Mich. 528. Same — Remote cause of loss — Warehouseman not liable: — PlaintifY shipped certain oats to defendant to be clipped and re- shipped. WHiile in the elevator and before clipping they were ac- cidentally destroyed by fire. Held: That defendant's neglect to clip and shij) the oats was at most a remote cause, while the ac- cidental fire was the proximate cause of the loss, and that the law does not look beyond the proximate cause. Judgment for plaintifif reversed. McLanc, Swift, & Co. v. Botsford Rleva- tor Co., 136 Mich.. 664. Same — Warehouseman liable for loss if property is placed in different building: — Defendant warehouseman contracted to store j)laintiff's goods in a certain building. Instead, he placed 438 Muiih'.w ni'.ristoNs. them ill an acljoininj^ building where tliey were accidentally and witlunit defendant's ncglij^cncc, destroyed hy fire. Held, that defendant was guilty of a leciinical conversion and was liable for the value of the goods. Ihtdsoii \. C(>lii))ihiaii Transfer Co., 137 Mich., 255. O. Warehouse Receipt — Delivery of, passes title to goods: — Form of warehouse receipt considered and Jield that a delivery there- of transfers title to the property described. Kessler & Co. v. Veio, 142 Mich. 471 ; Kessler & Co., v. Zacharias, 145 Mich. 698. Elevator receipts — Valid tender by: — An ofifer 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. Greg- ory et al. V. JVendell et al., 40 Mich. 432. R. Bill of ladi)ig — Indorsement — Effect of: — Indorsement of a bill of lading is no more than an assignment of the shipper'.? obligation, and of the property called for by the bill. It in- volves no promise on the part of the indorser to do anything towards forwarding the property to its destination. Maybee & Hasley v. Tregent, 47 Mich. 495. MINiNESOTA LAWS. '^39 CHAPTER XXIII MINNESOTA LAWS PERTAINING TO W^VREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Minne- sota. It took elYect January 1, 1914. See Ch. 161, General Laws Minn., 1913. p. 198; also this volume p. 1. Election, etc.: — 'I'he general supervision of railroads and express companies doing business as common carriers, and of public warehouses, is vested in a board of three railroad and warehouse commissioners, which shall be known as the "Rail- road and Warehouse Commission." Such commissioners shall be elected at the general election, and .shall hold office for four years, and until their successors qualify. Minn. Rev. Laws, 1905. sec. 1953. Vacancies: — Vacancies in the commission shall be filled by the governor until the next general election, when a commission- er shall be elected for the unexpired term. Id. sec. 1954. Qualifications: — No person in the employ of any railroad company or grain warehouse company, or who owns stocks, bonds, or other property therein, shall be eligible as a commis- sioner; nor shall any such commissioner, during his continuance in office, be interested in any such stock, l)onds, or other prop- erty, or in any contract for the construction, repair or main- tenance of any railroad, or accept any employment, office, or retainer under any such company, or ])articipate in any hear- ing or proceeding in which he has a pecuniary interest, hi. sec. 1955. Oath — Bond — Salary: - Ik-lore enlerinj; \\\n^\\ the duties of his office, each commissioner shall take, subscribe, and tile with the secretary of state an oath as follows: "I do solemnly swear that I will support the constitution of the United States and the constitution of this state, and thai I will faith fully discharge mv duties as a member of the railroad an c V e *1 w w •X S" ■z n 2: n p s .. . VI / n 2; o td c 3- The receipts nhall be consecutively numbered and delivered to the owner imme- diately upon receipt of each lot or parcel of grain, giving the true and correct grade and weight thereof- The m.-inncr of receipt of such grain shall be stated in the re. ceipt. with the number and distinctive mark of each car, and the name of each barge or ^^^ MINNESOTA LAWS. Sale, etc., of stored grain forbidden: — No such warehouse- man sliall sell or otlierwise dispose of or deHver out of store any such grain without the express authority of its owner and the return of the storage receipt, except as herein provided, nor mix together grain of different grades in store, nor select grain of different qualities, but of the same grade, for storage or de- li\cry. nor in any way tamper with grain of others while in his possession or custody, with the purpose of securing any profit to himself or any other person, or attem])t to deliver grain of one grain for that of another. Any i)erson violating any pro- vision of this section shall be punished by a fine of not more than one thousand dollars or imprisonment in the state prison for not more than five years, or both. Rev. Laws. 1905. Sec. 2050. Delivery of grain: — Upon return of the receii)t to the proper warehouseman, properly indorsed, and upon payment or tender of all advances and legal charges, grain of the grade and quan- tity named therein shall be delivered to the holder of such re- ceipt within twenty-four hours after facilities for receiving the same have been provided. If such warehouseman shall fail so to deliver it. he shall be liable to the owner in damages at the rate of one cent a bushel for each day's delay, unless he shall deliver the property to the several owners in the order of demand as rapidly as it can be done by ordinary diligence. If upon such demand and tender the warehouseman shall fail so to deliver such grain, the person entitled thereto may recover the same by action ; and such warehouseman shall also be guilty of lar- ceny. Id. Sec. 2051. Bond: — Every person applying for a license for a terminal warehouse at Minneapolis. St. Paul, or Duluth, shall file with the commission a bond to the state in a penal sum to be fixed by such commission, not less than fifty thousand dollars, condi- tioned for the faithful di.scharge of his duties as such warehouse- man, and full compliance with all the laws of the state and rules of the commission relative thereto. If such warehouseman apply for a license for more than one warehouse in the same county, but one bond need be given. Id. Sec. 2052. as amended by Laws 1909, c. 82, Sec. 1. Special bins: — At the request of the owner or consignee, such warehouseman shall subject to the rules made by the com- MINNESOTA LAWS. 457 mission, store any grain of the same owner or consignee, in sep- arate bins, which grain shall then bear the name of the owner or consignee. The warehouseman shall issue to the owner or con- signee, distinguishing whether owner or consignee, a warehouse receipt or receipts for all or any part of such grain. Every such receipt shall give the name of the owner or consignee and state the amount, kind and grade of grain for which the receipt is issued, and that the grain of such owner or consignee is stored separately from the grain of any other owner or consignee. The warehouseman shall, on presentation and surrender of the ware- house receipt bearing the proper endorsement of the person to whom it was issued, deliver to the person surrendering the re- ceipt such amounts of the same grain as may be demanded and on the same grade as called for by the receipt. The warehouse- man at the request of the owner or consignee may clean, dry, mix. or otherwise improve the condition or value of such grain, and it shall be delivered separately from the grain of any other owner or consignee upon the order of the owner or consignee, as called for by the warehouse receipts issued therefor and endorsed by such owner or consignee. Id. Sec. 2053. Inspection: — All grain received at a terminal warehouse shall tje inspected and graded by a state inspector, and reinspected in like manner upon delivery from such warehouse. The charges for such inspection shall be paid by the warehouseman and added to the storage, and the chief inspector may recover such charges from the warehouseman. Rev. Laws, 1905. Sec. 2054. Rules to be prescribed by commission: — The commission shall make such rules as may be necessary in regard to the receipt, care, and delivery of grain, the issuance, cancelation, division, and consolidation of warehouse receipts, and such other mat- ters relative to the management of the business of terminal ware- houses as it shall deem proper. Id. Sec. 2055. Statements to commission: — livery terminal warehouseman shall post conspicuously in his business office, on or before Tues- day morning of each week, a statement of the amount of grain of each kind and grade in store in his warehouse at the close of Inisi- ness rjii the ])receding Saturday, and render a like statement, veri- fied by him or his bookkeeper having personal knowledge of the facts, to the warehouse registrar of the cfHiimission. lie shall 45S M I N N l':S( )T.\ LAWS. alsi> make a ilaily slalciucnt to said registrar of the amount of eaeli kiiul and grade of such grain received in store in his ware- house the jireceding day; the amotuit shipped or delivered, and the warehouse receipt canceled on such delivery, stating the num- ber of each receipt and the amount, kind and grade of grain shipped or delivered thereon ; the amount, kind, and grade of grain deli\ered for which no warehouse receipt was issued, and how and when the same was received, the aggregate of such re- ported cancelations and delivery of unreceipted grain corre- sponding in amount, grade and kind with the shipments and de- liveries reported ; and shall also at the same time report the receipts canceled upon issue of new ones, with the number of each such receipt canceled and that issued in its place. He shall also furnish the registrar any further information regarding receipts issued or canceled necessary for correct record of all such receipts, and of grain received and delivered, and shall make a further verified statement to the commission of the condition and management of any terminal warehouse under his control, at such times and in such form as the commission may require. It is hereby made the duty of the secretary of the commission to act as warehouse registrar in accordance with the spirit and intent of this chapter. Id. Sec. 2056. Schedule of rates — Maximum charges: — Every such ware- houseman shall annually, during the first week in September, publish in some newspaper — daily if there be one — published in the place where his warehouse is situated, a schedule of storage rates for the ensuing year, which shall not be increased during such year, and no discrimination in rates shall be made by any such warehouseman. The charge for receiving, handling, storing, and delivering grain at such warehouse shall not exceed one and one-half cents per bushel for the first fifteen days or part thereof, one-half cent for each fifteen days or part thereof there- after, or four cents for continuous storage from November 15 to May 15 next succeeding. Id. Sec. 2057. Examination: — Every person having an interest in any grain stored in any such warehouse, and every state grain in- spector, shall have the right to examine at all times during ordi- nary business hours any grain so stored, and all parts of such warehouse; and every such warehouseman, his agents, and serv- MINNESOTA LAWS. 459 ants, shall furnish proper facilities for such examination. Id. Sec. 2058. Control and inspection of scales: — All scales in such termi- nal warehouses, or used for weighing grain in railroad yards at ter- minal points, shall be under the control of the state weighmasters and subject to inspection by them, exempt from the jurisdiction of sealers of weights and measures. They shall be inspected at the request of any person interested in any grain weighed or to be weighed thereon. If found incorrect, the cost of inspection shall be paid by the owner thereof ; otherwise by the person requesting the inspection. No scales found incorrect shall be used until re-examined and found correct, hi. Sec. 2059. Boards of grain inspection : — The boards heretofore known as the boards of appeals for the inspection of grain at Minneapo- lis and at Duluth shall hereafter be known as "The Minneapolis Grain Inspection Board" and "The Duluth Grain Inspection Board," respectively. Each board shall consist of three mem- bers appointed by the governor, who shall have the same qualifi- cation as grain inspectors, and not more than two of whom shall be of the same political party. Their term of office shall be for three years from August 1st succeeding their appointment, and until their successors qualify, except as hereinafter provided. At the expiration of the terms of the present members, on or before August 1st. 1909. the governor shall appoint one member of each of the above named boards to serve for one year, one member of each board to serve for two years and one member of each board to serve for three years. The governor may remove any member and fill any vacancy for the unexpired term. Mem- bers of either board shall have a right to act at either Duluth or Minneapolis. Id. Sec. 2060, as amended by Laws. 1909, c. 158. Sec. 1. Bond: — Before entering on the duties of his office, each member of such boards shall give bond to tlie state, with sureties to be approved by the governor, in the sum of five thousand dol- lars, conditioned for the faithful discharge of the duties of his office. No surety on any .such bond shall be interested in or con- nected with any grain, warehouse or commission business, firm, or corporation. "Rev. Taws. 1905. Sec. 2061. Minnesota grades: — The two boards, or a majority of the six members thereof, shall meet annually in joint session on or m MINNKSOTA LAWS. before Soptcinher 15, and oslahlisli tlu- i^ratles of all grain sub- ject {o state inspection, to he known as "Minnesota Grades." Such grades, and the tests thereof, shall he i)uhlished daily for one week in a newspaper in each of the cities of Minneapolis anil Duluth. and all grain received at any jjiihlic warehouse shall be graded accordingly. Such grades shall not he changed before the next annual meeting without the concurrence of at least five members of such hoards. /(/. Sec. 2062. Duties of boards: — luich of such boards shall recommend to such commission the discharge of any inspector deemed by them incompetent or otherwise unfit, and make such other reports and recommendations as they deem advisable. Id. Sec. 2063. Salaries: — The salaries of the members of such boards shall be fixed by the commission and approved by the governor, and such salaries and all their necessary expenses shall be paid out of the grain inspection fund on the order of the commission. /(/. Sec. 2064. Chief inspector: — Such commission shall appoint a chief inspector, whose term of office shall be for two years, unless sooner removed by the commission. Such inspector shall give bond to the state in the sum of ten thousand dollars, with sureties to be approved by the commission, conditioned for the faithful and impartial discharge of the duties of his ofiice according to law and the rules and regulations prescribed by the commission, and the payment of all damages sustained by any person, caused by his failure to perform such duties. Id. Sec. 2065. Deputy inspectors: — The chief inspector, with the approval of the commission, shall appoint such number of deputies as may be required. One such deputy in each of the cities of St. Paul, Minneapolis, and Duluth shall be styled "chief deputy." Each deputy inspector shall give bond as recjuired of the chief inspector, but in the sum of five thousand dollars. They shall be under the control and supervision of the chief inspector, and may be removed by him. Id. Sec. 2066. Standard samples: — The chief inspector shall furnish stand- and samples of grain of each Minnesota grade to any grain ware- houseman in the state, upon request and payment of the actual cost thereof. Id. Sec. 2067. MINNESOTA LAWS. 461 Duty of inspectors: — Such inspectors shall inspect and grade all grain received at or shipped from any terminal ware- house in car-load or boat-load lots, and give a certificate of the inspection to the person entitled thereto. Their decision shall be conclusive as to the grade and dockage of such grain, and the certificate shall be evidence thereof, unless changed upon re-in- spection or appeal. Id. Sec. 2068. Appeals: — Any owner, consignee or shipper of grain, (ir any warehouseman, who is dissatisfied with the inspection of grain by any chief or deputy inspector, may appeal from his decision to the nearest grain inspection board by filing notice of such appeal with the chief deputy inspector and paying a fee. to be fixed by the commission, which shall be refunded if the appeal is sus- tained. Such deput\- insj)ector shall forthwith transmit the no- tice to said board of appeals. The decision of said board, fixing the grade of such grain shall be final. Jd. Sec. 2069, as amended by T.aws 1907. c. 55. Sec. 1. Withholding grain from store: — The owner or consignee of grain consigned to a terminal warehouse may have the same withheld from storage and delivered to him or his order by giving notice to the carrier in possession thereof, and to the warehouseman to whom such grain was consigned, and paying all charges that may be a lien thereon. Such grain shall be re- moved within twenty-four hours after the car or boat contain- ing the same is placed in a proper and convenient place for un- loading. If the grain be delivered contrary to such notice, such warehouseman, and the carrier so delivering the same, shall be jointly and severally liable to the owner for double its value. Rev. T.aws. 1905, Sec. 2070. Unauthorized storage forbidden: — No contract, agreement, unrlerstanding. or combination shall be entered into between any public warehouseman and any common carrier or other person for the delivery of any grain at any |)ublic warehouse contrary to the direction of the owner, nor shall atiy grain be so delivered or received. Id. .Sec. 2071. Weighmasters and w^eighers: — The commission shall ap- point at each terminal ])oint a state weighmaster and such weigh- ers as may be necessary, whf) shall lia\c the control of the weigh- ing of all grain subject to state inspection, except when other- ■11'- MINNKSDIA LAWS. wise ordered by the party shippins^ the same. l'"-\ ery sueh weigh- master and weii^her .sliall give hond to the state in the sum of live thousand ilollars, eondilioued for the faithful (hseliargc of his duty. /(/. See. 2072. Weighmasters' records and certificates: -All weighmasters and weighers shall keep sueh reeords as may be prescribed by the commission and shall furnish to any person for whom weigh- ing is done a certificate under his hand, showing the amount of each weight, the mimber and initial letter or other distinctive mark of each car weighed, place and date of weighing, and con- tents of car. Such certificate shall be prima facie evidence of the facts therein certilied. Id. Sec. 2073. Fees for inspection and weighing: — The fees for inspection and weighing sliall be tixed by the commission, and shall be a lien upon the grain. If the grain is in transit, such fees shall be paid by the carrier and treated as advance charges, and, if received for storage, by the warehouseman, and added to the storage charges. All moneys so collected, and all fines and pen- alties for violation of any provision of this subdivision, shall be paid into the state treasury, and known as the "Grain Inspection Fund." and paid out only on order of the commission and audi- tor's warrant. All interest received from deposits of said moneys shall be credited on the first of each month to such fund, and notice of the amount of such interest shall be sent to the chief inspector. Id. Sec. 2074. Qualifications of inspectors and weighmasters: — No mem- ber of a board of apj)eals, chief or deputy inspector, weigh- master, or weigher shall during his term of service be in any way interested in the handling, storing, shipping, purchasing or selling of grain, or any of its products, nor in the employment of any person or corporation engaged therein, nor shall he be a mem- ber of any board of trade or organization of like character. Id. Sec. 2075. Filing of bonds and suits thereon: — All bonds required by this subdivision shall be tiled with the secretary of state, and suit may be brought thereon by any person injured by the mis- conduct of the principal. Id. Sec. 2076. Removal of inspectors and weighmasters: — Upon written complaint filed with the commission, charging any inspector, dep- MINNESOTA LAWS. 463 uty inspector, weighmaster, or weigher with official misconduct, inefficiency, incompetency, or neglect of duty, the commission shall investigate such charge, and, if it be sustained, shall remove such officer. Id. Sec. 2077. Penalties — Personating inspector: — Any person not duly appointed and qualitied, who shall assume to act as a state in- spector or deputy inspector of grain, shall be guilty of a mis- demeanor and be punished by a hne of not less than fifty dollars nor more than one hundred dollars. Id. Sec. 2078. Misconduct of inspectors and weighmasters : — Any inspec- tor or deputy inspector, weighmaster or weigher, who shall knowingly or carelessly inspect or weigh any grain improperly, or give any false certificate of inspection or weight, or accept money or other consideration, directly or indirectly, for any neglect or improper performance of duty, or who shall be guilty of any neglect of duty, and any person who shall improperly influence, or attempt to influence, any such officer in the performance of his official duty, shall be guilty of a gross misdemeanor and shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or imprisonment in the county jail for not less than thirty days nor more than one year, or by both such fine and imprisonment. Id. Sec. 2079. Certificates not issued under state authority — Use of cer- tain words prohibited: — Any person who is not connected with the state weighing department is hereby prohibited from using the term "weighmaster," "state weighmaster," any repre- sentation of the seal of the state, or any other words or device calculated or tending to indicate that the certificate or receipt is issued under state authority, or to otherwise deceive or mis- lead the ])ublic or any person interested, when issuing certificates or receipts purporting to show the weight of grain, hay or straw ; provided, that where weigliing is done under the authority of the charter or an ordinance of any city or village, or under the auspices of any incorporated chamber of commerce, board of trade or exchange, any certificate or receipt issued therefor shall on its face plainly show its source and the signature of the per- son signing the same shall be followed by a designation ])lainly showing the capacity in which the said signer is acting, and the term "weighmaster" may be a part of such designation. Pro- vided, further, that every such certificate or receipt issued by •**>•* MINNESOTA LAWS. anyone other tliaii the duly authorized representatives of the state weigliing tlepartnient, shall have plainly stamped or printed across its face in red ink in letters not less than one-quarter of an inch high, the words, "This Certificate Is Not Issued Under State Authority." Sec. (2079) 1, Rev. Laws, Supp. 1909. Same — Penalty for violation: — Any person found guilty of violating section 1 (2079-1) of this act shall be guilty of a mis- demeanor. Id. Sec. (2079) 2. Obstructing weighmaster: — Any person or corporation who shall obstruct any state weighmaster or weigher in the perform- ance of his otificial duties, by preventing his proper access to the scales used in the weighing of grain or otherwise, shall forfeit to the state one hundred dollars for each offense. Rev. Laws, 1905, Sec. 2080. Standing appropriation: — All moneys which shall come into the state treasury on account of the grain inspection fund, or so much thereof as may be necessary, are hereby annually appropri- ated to the payment of the salaries, fees, and expenses provided in this subdivision, to be disbursed on the order of the commis- sion. The commission shall fix the salaries of inspectors, weigh- ers, and all other employees of the state grain department and prescribe the time and manner of payment thereof. Id. Sec. 2081. Inspectors to examine cars: — The chief inspector of grain, and any deputies, or 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 purposes of inspecting the same, shall first ascer- tain the condition of such cars and determine whether any leak- ages have occurred while said cars were in transit ; also whether or not the doors are properly secured and sealed, making a record of such facts in all cases and recording the same in a proper book to be kept for the i)urpose. After such examination shall have been duly made and recorded and the inspection of such grain has been made, the said officials of the state grain inspection de- partment above mentioned, shall 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 therefor and MINNESOTA LAWS. 465 the time when such state seals were substituted, together with a full description of said seals, with their numbers, shall be made by the said officials. Jd. Sec. 2082. Police protection: — All railroad companies, warehousemen and millers operating at the terminal points of this state shall furnish ample and sufficient police protection at all of their several terminal yards and on their terminal tracks to securely protect all cars containing grain, while the same are in their possession, shall prohibit and restrain all unauthorized persons, whether under the guise of samplers, sweepers, or under any other pre- text whatever, from entering or loitering in or about their re- spective railroad yards or tracks, and from entering any cars of grain under their control, or removing grain therefrom, and shall employ and detail such number of watchmen as may be necessary for the purpose of carrying out the provisions of the within section. Any failure to comply with the provisions of this section, and section 2082, shall be deemed a misdemeanor. Id. Sec. 2083. Local warehouses — Defined: — -All elevators and warehouses in which grain is received, stored, shipped, or handled, situated on the right of way of any railroad company, or adjacent thereto to be used in connection with its line of railway at any station oi siding other than Minneapolis, St. Paul and Duluth. shall be public warehouses, known as local warehouses, and shall be under the supervision and subject to the inspection of the commission fd. Sec. 2084. License: — All such elevators and warehouses shall bt licensed annually by the commission. Application for license must be made before transacting warehouse business, b^ery license issued shall expire on August 31 following. The fees shall be one dollar for each license issued. The fees so collected shall be paid into the state treasury and credited to the state grain inspection fund. Such license shall be revoked by the commis- sion for cause upon notice and hearing. Id. .Sec. 2085 (1), as amended by Act April 18, 1911. Sess. T.aws, 1911, p, 224. This act shall take efifect and be in force from and after its passage. Approved April 18, 1011. [d. .Sec. 2085 (2). Commission may determine when to be open: — The raibnad and warehouse c(.)ninhssion, after hearing, may determine when il is necessary for any person operating a local warehouse to keep 30 4GG MINN ESfIT A 1 . A W S. the same open for business in order to properly serve the public. Sec. (20S5) 1. Rev. Laws. .^upi). l')0'). Same — Failure to keep open — Penalty: Any person oper- ating sueh local warehouse who shall fail lo keep the house open for business during the time fixed by the commission, after re- ceiving written ncUice of the same, shall be deemed guilty of a misdemeanor. Id. Sec. (208,5) 2. State inspection and weighing: — The commission, upon proper application for state inspection or weighing of grain by any person interested at any other point than St. Paul, Minne- apolis or Duluth, may furnish such service, if it is deemed ex- pedient: Provided, such per.son lirst agrees to [)ay all costs of the service. Rules governing state inspection and weighing at other terminals shall apply at such points. Rev. Laws, 1905, Sec. 2086. Storage — Duties of warehouseman — Receipts: — Every pub- lic warehouseman shall receive for storage and shipment, so far as the capacity of his warehouse will permit, all grain in a suitable condition for storage tendered him in the usual course of busi- ness without discrimination of any kind. A warehouse receipt shall be issued to the party delivering the grain, which shall state the place and date when the grain was received, the name and residence of the owner of the grain, the kind and grade of the grain, the gross w^eight, dockage and net weight of the grain as per Minnesota standard weight, and in addition thereto such receipt shall contain, either on its face or reverse side, the follow- ing specilic warehouse and storage contract : "This grain is re- ceived, insured and stored under the following conditions : The maximum charges for receiving, insuring, handling, storing fif- teen days and delivering grain is two cents per bushel. Storage after the first fifteen days, one-half cent per bushel for each fifteen days or part thereof, for the first three months ; after that one-half cent per bushel for each thirty days or part thereof. If grain is cleaned at owner's request, one-half cent per bushel. This grain has been received and stored with grain of the same lawful grade. Upon the return of this receipt and payment or tender of stated lawful charges accrued up to the time of said return of this receipt, the above amount, kind and grade of grain will be delivered within the time prescribed by law to the person above named, or his order, either from this warehouse, or if the MINNESOTA LAWS. 467 owner so desires, in quantities not less than a carload on track at any terminal point upon the same line of railway within this state, designated by said owner, where state inspection and weighing is in force, the grade and weight thereof to be deter- mined by state inspection and weighing as provided by law." Attached to the receipt shall be a stub record stating number and date of receipt and the gross weight, dockage and net weight ; such stub record to remain in the possession of the warehouse- man for inspection by the commission or interested parties. The receipts shall be consecutively numbered and delivered to the owner immediately upon receipt of each lot or parcel of grain giving the true and correct grade and weight thereof. Any pro- vision or agreement in such receipt not contained in the afore- said specific warehouse and storage contract shall be void. The failure to issue such receipt as directed, or the issuance of slips. memoranda or any other form of receipt embracing a dififerent warehouse or storage contract, shall be deemed a misdemeanor, and no such slip, memoranda, or other form of receipt shall be admissible in evidence in any civil action. Id. Sec. 2087. as amended by Laws 1907, c. 230. Sec. 1. and Laws. 1909. c. 384. Sec. 1. Purchase by warehouseman — Receipt: — There may be printed on such storage receipts a recei])! to be executed in case such storage receipt is purchased by such warehouseman, such receipt to be executed in the presence of the owner of such stor- age receipt and signed by him, and the warehouseman shall also record such purchase as to the total amount paid and the amount paid per bushel on the stub record of his storage receipt book. Such receipt shall be in substantially the following language and form : Received from Elevator Company .dollars and storage, in full payment for the grain represented by this storage receipt. Gross price cents, storage cents, net price cents. All hiank «;paccs in this receipt wore filled in before the same was signed by me. and I hereby certify that T am the owner of the grain for which this receipt was issued and that there are no liens, chattel mortgages or other claims against the grain represented by this receipt. Signed Owner. Date 19.. Provided, that nothing in this section contained shall be con- strued to affect in any manner the conditions of the storage con- tract specified in section 1 (2087) of this act. Id. Sec. 2. 468 MINNESOTA LAWS. Delivery of grain: ( )ii the return ami surrender of any receipts ami payment of lawful charj^a's, the i^rain represented therein sliall he immediately deliverahle to tlie owner, or his order, and shall not he suhject to any further charge for storage after demand for delivery shall have heen made and facilities for receiving and shipping the same have heen provided. If not delivered within twenty-four hours after such demand, the ware- houseman shall he liahle to the owaier in damages not exceeding one cent a bushel for each day's delay unless he shall deliver to different owners in the order demanded as rapidly as it can be done by ordinary diligence. In case that terminal delivery of grain is demanded and the warehouseman shall forthwith issue and deliver to the owner or his order a surrender receipt, such receipt to state the date, name of owner, the grade, gross weight, dockage, and net weight of the grain represented by such receipt, making such grain deliverable in its net amount at any terminal market in the state designated by the owner of said receipts on the same line of railroad, such grain to be subject to the usual freight, inspection, weighing and switching charges when it ar- rives at the terminal so designated, the freight to be computed on the basis of the gross weight of the grain represented by such surrender receipt. The owner of the receipts may at his option order a car in which the grain covered by his surrender receipt is to be transported, and in such case the grain shall be delivered immediately when the car so ordered is placed at the warehouse. Rev. Laws, 1905, Sec. 2088, as amended by Laws 1909. c. 69, Sec. 1. Records and warehouse receipts: — Every local warehouse- man shall keep in proper books a record of all grain received, stored, or shipped, stating the weight, grade, dockage for dirt or other cause, and the name of the owner. Every warehouse receipt issued by him shall state that delivery to the owner is to be made at the place of original storage, or, at the option of the owner, in quantities not less than a car load on track on the same line or railway at any terminal point in the state to be designated by the owner. Rev. Laws. 1905, Sec. 2089. Certificates of shipment: — If the owner elects a delivery on track at a terminal point, the warehouseman shall give him a certificate in evidence of the surrender of the original warehouse receipts and his right to such shipment, which shall .state on its MINNESOTA LAWS. 469 face the date and place of issue, the name of the consignor, con- signee and destination, and specify the kind of grain, and grade and net quantity, exclusive of dockage, to which the owner is entitled. Such grain shall be subject only to the freight and other lawful charges accruing up to the time of delivery at ter- minal point. Xo actual delivery shall be deemed to have been made until the grade and quantity of the grain called for in the certificate as determined by the inspection and weighing has been established. Id. Sec. 2090. Grain — Standard bushel: — No person purchasing, selling or storing grain in any public local warehouse in this state, as the same is now or may be hereafter defined by law, shall use any other measure for such grain than the standard bushel, and no other number of pounds shall be used or called a bushel than the number of pounds provided by law as the standard weight of the kind of grain in question. Rev. Laws, Supp. 1909, Sec. (2090) 1. Same — Pooling prohibited: — It shall be unlawful for any person, firm or corporation engaged in the l)uying, selling or handling of grain in any public local warehouse in this state, or for the local agent in charge of such warehouse, or any other agent of the person, firm or corporation, operating the same, to enter into any contract, agreement, combination or understanding, with any other person, firm or corporation, owning or operating any other public local warehouse at any railway station, their agent or agents, whereby the amount of grain to be received or handled by said warehouses, at such station, shall be equalized or pooled between said warehouses, or whereby the profits or earn- ings derived from said warehouses shall be divided or pooled, or api)ortioned in any manner, or whereby the price to be paid for any kind of grain at such station shall be fi.xed or in any manner afifected, and each day of the continuance of any such agreement, contract or understanding shall constitute a sejiarate offense. Id. Sec. (2090) 2. Same — Penalty for violation — Revocation of license: — Any person, firm or corporation, or any (dticer or agent or any person, firm, or corporation, who shall violate the ])rovisions of this act shall be guilty of a misdemeanor and shall be punished by a fine of not less than fifty dollars or more than one hundred dollars. and by imprisonment in the county jail for not less than thirty •^70 MtNNKSOTA LAWS. days, or more tliaii three luontlis. The raih-o.ul and warehouse coininission of this state sliall ha\e the power, and it sliall be their duty, wlienever they lind, after a hearing, that the pro- visions of this net have been viohited by any person hokHng a license to conduct a public warehouse in this state, to revoke and annul such license, and in such case no new license shall be granted io the person whose license is so rexoked nor to any one either directly or indirectly engaged with him in said jjusiness, for the period ot one year. Id. .Sec. (2090) 3. Reports to commission: — Kvery such warehouseman shall on or before the fifteenth day of July in each year render such commission on blanks or forms prepared by it an itemized and veritied report of all business transacted by him as a public warehouseman during the year beginning July 1st of the preced- ing year and ending June 30th of the current year. Such report shall state the grade, gross weight and dockage of all grain of various kinds in his warehouse at the beginning of the year, the grade, gross weight and dockage of all grain received, the grade, gross .veight and dockage of all grain shipped or delivered from such warehouse, and the grade, gross weight and dockage of all grain remaining in the warehouse at the end of the year, and such report shall particularly specify and account for any overage or shortage in any kind of grain accruing during the year. Such report shall also state the weight basis upon which all such grain has been received, and the weight basis on which the same has been shipped or delivered. The commission may also require special reports from such warehousemen at such times as the commission may deem expedient. The commission may cause every such warehouse and the business thereof and the mode of conducting the same to l)e inspected by one or more of its members or by its authorized agent whenever deemed proper, and the property, books, records, accounts, papers and proceed- ings of every such warehouseman shall at all times during busi- ness hours be subject to such inspection. The expense incurred by the commission in carrying out the provisions of this section .shall be paid out of the state grain inspection fund. Rev. Laws, 1905, Sec. 2091 (1), as amended by Act April 18, 1911, Sess. Laws, 1911. p. 357. This act shall take effect and be in force from and after its passage. Approved April 18. 1911. Id. Sec. 2091 (2). MINNESOTA LAWS. 471 Delivery for storage a bailment: — The delivery of grain to any warehouseman for storage, although it be mingled with that of others, or shipped or removed from the original place of storage, shall be deemed a bailment, and not a sale. Rev. Laws, 1905. Sec. 2092. Carriers' receipts: — Every common carrier transporting grain shall give the shipper, on request, a receipt for the number of pounds of grain received from him, and shall deliver such quantity to the consignee or proper connecting carrier, less loss from transportation, not to exceed sixty pounds to each car. Id. Sec. 2093. Penalties: — Such carrier shall forfeit to the state, for each refusal to give such receipt, not less tlian ten dollars nor more than fifty dollars, and for each failure to deliver the proper quantity of grain, not less than fifty dollars nor more than one hundred dollars. Id. Sec. 2094. Elevator charges, when forbidden: — No railroad company shall charge or collect elevator or other charges for handling grain or for the use of any elevator, when such grain is loaded by the shipper and not passed through an elevator, or make any distinction in charges of any kind against a person shipping grain otherwise than through an elevator. Id. Sec. 2095. Unlicensed warehouses: — Any person or corporation oper- ating such warehouse without license shall forfeit to the state, for each day's operation, fifty dollars, and such operation may be enjoined upon complaint of the commission. Id. Sec. 2096. Warehouse receipts, etc., transferred by indorsement: — Warehouse receipts and bills of lading for property in transit, unless the words "Not negotiable" are plainly written or stamped on the face thereof, may be transferred by indorsement, and such indorsement shall transfer to the indorsee the title to the prop- erty and all rights of the indorscr in respect thereto. Id. Sec. 2097. Bill of lading — Order bill of lading defined: — That when- ever any common carrier, railroad or transportation company (hereinafter termed carrier) shall issue a bill of lading for the transportation of property from one ])lace to another within this state, or between places one of which is within this state, which bill shall be, or purport to be, drawn lo the order of the ■172 MINNESOTA LAWS. shipper or other sjicciticd person, or which shall contain any statenuMit or representation that the property descrihed therein is. or may be deliverable upon the order of any i)erson therein mentioned, such bill shall be known as an "( )rder Bill of Lading" and shall conform to the following reejuirements : (a) In connection with the name oi the person to whose order the property is deliverable, the words "Order of" shall prominently appear in i)rint on the face of the bill, thus "Con- signed to Order of " (b) The bill shall be printed on yellow paper, 8^ inches wide l)y 1 1 inches long. (c) It shall contain on its face the following provision: "The surrender of this original order bill of lading properly indorsed shall be required before delivery of the property." (d) It shall not contain the words "not negotiable" or words of similar import. If such words are placed on an order bill of lading, they sliall l)e void and of no effect. (e) Nothing herein shall be construed to prohibit the inser- tion in an order bill of lading of other terms or conditions not inconsistent with the provision of this act ; but it shall be un- lawful to insert in such bill any terms or conditions contrary to, or inconsistent with, such provisions and it shall be unlawful for any carrier to insert in such bill any term or condition limit- ing the liability of such carrier for actual loss. Rev. Laws, Supp. 1909, Sec. (2097) 1. Same — Straight bill of lading defined: — Whenever a bill of lading is issued by a carrier for the transportation of property from one place to another within this state, or between places one of which is within this state, in which the property described therein is stated to be consigned or deliverable to a specified person, without any statement or representation that such prop- erty is consigned or deliverable to the order of any ])erson therein named. Such bill shall be known as a "straight bill of lading," and shall contain the following requirements : (a) The bill shall be printed on white paper Hy> inches wide by 11 inches long. (h) The bill shall have prominently stamped upon its face the words "not negotiable." (c) Nothing herein shall be construed to prohibit the inser- tion in a straight bill of lading of other terms or conditions not MINNESOTA LAWS. ^^^ inconsistent with the provisions of this act; but it shall be un- lawful to insert in such bill any terms or conditions contrary to or inconsistent with such provisions, fd. Sec. (2097) 2. Same— Penalty for violating requirements :— Every carrier, or officer, agent or servant of a carrier, who shall knowingly violate any of the requirements stated in subdivisions (a), (b). (c), (d),'or (e) of section 1 (2097-1) and in subdivisions (a). (b), or (c) of section 2 (2097-2) shall be guilty of a mis- demeanor and punishable by fine of not more than one thousand dollars or imprisonment not more than one year, or both. /(/. Sec. (2097) 3. Same — Issue of false bill or unmarked duplicate unlawful : — It shall be unlawful for any carrier, or for any officer, agent or servant of a carrier, to issue an order bill of lading or a straight bill of lading, as defined by this act. until the whole of the property as described therein shall have been actually received and is at the time under the actual control of such carrier, to be transported or to issue a second or duplicate order l)ill of lading or straight l)ill of lading for the same property, in whole or in part, for which a former bill of lading has been issued and remains outstanding and uncancelled, without prominently mark- ing across the face of the same the word "dui)licate." Id. Sec. (2097) 4. Same— Penalty and civil liability for violation:— Every car- rier, or officer, agent or servant of a carrier, who knowingly violates the provisions of section 4 (2097-4) of this act and every person who negotiates or transfers for value a bill of lading known by him to have been issued in violation of said .section 4 (2097-4) shall I)c guilty of a misdemeanor and upon conviction shall be punished by line not exceeding five thousand dollars or imprisonment not exceeding five years, or both. And every carrier who himself, or by his olliccr, agent or ser\ant authorized to is.sue bills of lading, issues a false or dui)licate bill of lading,' in violation of the ])rovisions of section 4 (2097-4) of this act, shall be estopped, as against all and every person or persons injured thereby who shall ac(|uirc any .such false or duplicate bill of lading in good faith and for value, to deny the receipt of the property as described therein, or to assert that a former bill of lading has been issued and remains orrt standing anany, corporation, co-j)artncrship. association or individual, operating any elevator, building or place in this state for the purchase, storage or deposit of any grain or oilier farm com- modity, shall be entitled to receive from, and .shall demand of, the officer whose duty it is to issue tlic same, the official cer- tificate of inspection in duplicate, together with the weighma.ster's certificate in dui)licate for any grain or other farm commodity shipped from any such elevator, building or place and inspected and wcighefi as prr)vidcfl by the laws of the state. I\ev. Laws, Supp. 1909, Sec. (2105) 1. 478 MINNESOTA LAWS. Same — Duplicate to be delivered to buyer, etc.: — Within ten days from tiic delivery of any such eertilicate as provided in section one (2105-1) (^f tliis act. the company, corporation, co- partnership, association or individual receivings the same shall deliver to the local buyer at the place where such grain or other farm commodity is purchased, stored or deposited, one of said duplicate certificates and the same slTall be retained by such local buyer in his office or place of business for thirty days there- after and be subject to examination by any person or persons desiring to inspect same. Id. Sec. (2105) 2. Same — Failure to deliver — Penalty: — Any company, cor- poration, co-partnership, association or individual mentioned in section one (2105-1) of this act, wdio shall fail to deliver any eertilicate mentioned in this act within the time and as provided in section 2 (2105-2) of this act, shall be guilty of a misde- meanor, and the weight and grade of the grain or other farm commodity, as shown by the records of the local btiyer, shall be taken as a basis of settlement between the local buyer of any such grain or farm commodity and the company, corporation, co-partnership, association or individual failing to deliver said certificate. Id. Sec. (2105) 3. Use of right of way for warehouse: — Any person shall have the right to use, as a site for a public warehouse, a proper por- tion of the right of way of any railroad, within the outside switches at any station or siding, upon the payment of reasonable compensation. Rev. Laws, 1905, Sec. 2106. Application: — Whoever wishes to exercise such right may make written application to the person or company operating such railroad for such site, describing it, stating the size and capacity of the proposed warehouse, the station or siding at which it is to l)c built, the time for which such site is desired, and the amount of compensation the applicant is willing to pay. Jd. Sec. 2107. Acceptance or rejection of offer: — Within ten days after the receipt of such application, the operator of such railroad shall notify the applicant in writing of his acceptance or rejec- tion of the compensation offered. If he fail so to do, he shall be deemed to have accepted the same. Upon acceptance and payment or tender of the compensation, the applicant shall there- upon be entitled to the site described. Id. Sec. 2108. MINNESOTA LAW'S. 479 Proceedings on rejection: — If the offer be rejected, and the parties fail to agree on compensation, the applicant may present to and file in the district court of the county a verified petition, setting forth the making of the application, with a copy thereof, the compensation offered, its rejection, and the failure of the parties to agree. The court shall thereupon by order fix a time and place for hearing such petition, not more than thirty days from its presentation. Such order shall be served as a summons in said court is served, at least twenty days before the time set for such hearing, which service shall give the court jurisdiction of both person and property. Id. Sec. 2109. Trial: — If such hearing be set at a time other than a term of court where a petit jury is in attendance, the court, unless a jury be waived, shall order the selection of twenty-four jurors from the list returned by the county board in the manner pro- vided for drawing jurors for a general term of such court, and the case shall be tried as other civil actions, and the compensation to be paid shall be assessed, both as a gross sum and an annual rental. The respondent shall elect either to receive the gross sum or the annual rental, and, if he fail to elect, the petitioner may do so, and judgment shall be entered accordingly. Id. Sec. 2110. Appeal: — Either party may appeal as from a judgment in a civil action within thirty days from the entry of judgment; but such appeal shall not stay the right of the petitioner to use the site designated, if the petitioner shall give bond with sureties approved by the court, in double the gross sum or annual rental tixed by the judgment, conditioned to pay such sum or rental, and abide and satisfy any judgment the supreme court may render in the [)remises. Id. Sec. 2111. Costs: — If the amount fixed by the final judgment be more than that offered in the application, the respondent shall recover costs and disbursements as in a civil action ; otherwise, the |)etitioner. /(/. Sec. 2112. Abandonment: — If the compensation, as finally fixed or agreed upon, be not paid within thirty days after the amount is finally .settled, or if the applicant shall not begin the erection of such warehouse witiiin two months, and complete the same and open it for business as a public warehouse within five months, 480 MlNKF.SoTA LAWS. after designation oi the siic, ilic a])plication shall he deemed abantlonod. /(/. Scr. _'ll.v Certificates on products: l".\erv person engaged in the slaughter of cattle, sheep or hogs, and dealing in the products thereof, who tnvns or controls the building wherein such busi- ness is conducted or such comniodities stored, may issue ware- house certificates for any of the commodities actually in store, and may sell, assign, transfer, pledge or incumber the same to the amount described therein. Such certificate shall contain the name and address of the person issuing it. the location of the warehouse, the date of issue, the quantity of each commodity, and its brand or mark of identification, if any. and be signed by the person issuing the same. Id. Sec. 2121. Interest in warehouse — Certified copy: — Before issuing any such certificate, he shall file with the register of deeds of the county, where the warehouse is located a written declaration, stating his name and residence, that he intends controlling a ware- house for the storage and sale of such commodities, a correct description of the warehouse, its location, and the name of any other person in any way interested therein. It shall be signed, acknowledged, and recorded in a book kept for that purpose, and a certified copy thereof shall be filed with the clerk of the city, village, or town wherein such business is conducted, and be kept in the same manner as chattel mortgages are required to be filed and kept, and the party making the declaration shall be indexed as the vendor, and the public as the vendee. Id. Sec. 2122. Statement printed on back: — Every such certificate issued shall have printed on the back thereof a statement that the party issuing it has complied with the law. and shall give the book, page, and place where the record of such declaration may l)e found, and the day of filing. Such certificate, when so issued and delivered, shall transfer to the holder the title to the com- modities therein described, shall be assignable by indorsement, and thereupon shall be ])rima facie evidence of title to such commodities in the indorsee. It shall be registered by the party issuing the same in a book kept for that purpose, which shall show the date, number, and name of party to whom issued, the kind and quantity of the commodities, and any brands or marks thereon, and be open to inspection by any person holding any outstanding certificate in force, his agent or attorney ; and when MINNESOTA LAWS. 481 the commodity specified therein has heen delivered, or it has in any other manner become inoperative, that fact, with the date of such delivery or other termination of liability, shall be entered in the register in connection with the entry of its issuance. Id. Sec. 2123. Property in warehouse : — No person shall issue such ware- house certificate unless the property therein described is actually in the warehouse ; and it shall remain there until otherwise ordered by the holder of the certificate, subject to the conditions of the contract between the warehouseman and the person to whom such certificate was issued, or his assigns, as to the time of its remaining therein ; and no second certificate shall be issued for the same property or any part thereof while the first is out- standing and in force, nor shall the property be sold, incum- bered, shipped, transferred or removed by the warehouseman without the written consent of the certificate holder. Id. Sec. 2124. Damages for injury: — Any person injured by any viola- tions of Sections 2123. 2124 may recover the actual damages sustained, and, if the violation was wilful, in addition thereto exemplary damages not exceeding double the actual damages, which shall be found by special verdict. Id. Sec. 2125. Penalties: — Every person who shall wilfully alter or de- stroy any register of such certificates ; or issue any receipt of certificates without entering and preserving in such book the registered memorandum ; or shall knowingly issue any such cer- tificates when the commodities therein described are not in the warehouse; or who, with intent to defraud, shall issue a second or other certificate for which a former valid certificate is out- standing; or who shall, under such circumstances, sell, incumber, ship, transfer, or remove from the warehouse any such certified property, or knowingly permit the same to be done, without the written consent of the certificate holder, or who knowingly re- ceives, or helps to remove, any such property, shall be guilty of a felony, and punished by imprisonment in the state prison for not more than five years, or by a line of not more than ten thousanrl dollars. Id. Sec. 2126. For keeping, repairing, etc. :--\Vh()ever at the request of the owner or legal possessor of any personal property shall store or care for or contribute in any of the modes mentioned in the 31 ■^S- MINNKSdlA LAWS. next section to its prosorxatiou. can.-, or to the enhancement of its value, sliall ha\c a Vwu u])on such pr(i|)LTty for the price or \ahic of such sloraj^c, cai'c or contribution, and for any legal charges against the same paid by such person to any otiier person, and the right to retain the property in his possession until such lien is lawfully discharged; but a voluntary surrender of posses- sion shall extinguish the lien herein gi\en. Rev. Laws, Supp. 1909, Sec. (3523) 1. For what given — Such lien and right of detainer shall exist for: 1. Transporting property from one place to another as a common carrier or otherwise; 2. Keeping or storing property as a warehouseman or other bailee; 3. Keejjing. feeding, jjasturing, or otherwise caring for do- mestic animals or other beasts, including medical or surgical treatment thereof and shoeing the same ; 4. Making, altering or repairing any article, or expending any labor, skill or material thereon. Such liens shall embrace all lawful charges against such prop- erty paid to any other person by the person claiming such lien, and the price or value of such care, storage or contribution and all reasonable disbursements occasioned by the detention or sale of the proi)erty. Id. Sec. (3523) 2. Sale: — If any sum secured by such lien be not paid within ninety days after it becomes due, the lien holder may sell the property and out of the proceeds of such sale there shall be paid, first, the disbursements aforesaid, and, the second, all charges against said property paid by such person to any other person, and, third, the total indebtedness then secured l)y the lien. The remainder, if any, shall be paid on demand to the owner or other person entitled thereto. Id. Sec. (3523) 3. Sale, when and where made — Notice: — The sale herein pro- vided for shall be made at i)ub]ic auction between 9 o'clock in the morning and -5 o'clock in the afternoon in the county where the property or some part thereof is situated. A notice stating the time and place of sale, the amount which will be due on the date of sale exclusive of the expenses of advertising and sale, and the grounds of the lien, giving a general description of the property to be sold, shall be ser\ed personally ujjon the owner .MINNESOTA LAWS. 483 of the property if he can he found within the county in which said property is stored, and if he cannot, then it shall be mailed to the owner thereof at least three weeks before the time fixed for such sale if the place of residence or postoffice address of such owner is known to him or with due diligence can be learned by the person claiming such lien, and shall be published once in each week for three successive weeks in a newspaper printed and published in the county where said property or some part thereof is situated, the last publication of such notice to be at least one week prior to the date of sale ; or, if there is no newspaper printed and published in the county, then said notice of sale shall be jjosted in three of the most public places in the county at least three weeks before the time of sale. In case neither the place of residence nor the postoffice address of such owner is known to the person claiming such lien and cannot with reasonable diligence be learned, the publication or posting of notice as herein provided shall be sufficient to authorize such sale. Id. Sec. (3523) 4. Conduct of sale: — The property sold as herein provided shall be in view at the time of the sale. Under the power of sale hereby given enough of said property may be sold to satisfy the amount due at the time of sale, including expenses, and said property, if under cover, may be offered for sale and sold in the original ])ackagcs in the form and condition that the same was received by the lien holder; Imt after sufficient property ha? i)een so sold to satisfy the amount so due no more shall be sold. The lien holder, his representatives or assigns, may fairly and in good faith purchase any property sold under the provisions of this act. provided the sale is conducted l)y the sheriff, his deputy, or any constable of the county where such sale is made. fd. Sec. (352.3) 5. Larceny — What constitutes: — l-'very ])crson who. with in- tent to deprive or defraud tlie true owner of his property, or of the use and benefit thereof, or to approijriatc the same to the use of the taker, or of any other person * * * Having in his f)ossession as storage, forwarding or commission merchant, carrier, warehouseman, factor, or broker, or as the clerk, agent, or employee of any such storage, forwarding, or commission merchant, carrier, warehouseman, factor, or broker, with intent to defraud, shall sell or in any way dispose of, or api)ly or am- 484 MINNESOTA LAWS. vert to his own use or the use of any other person, any bill of lading, customhouse permit, or warehouse receipt intrusted or consigned to him, or the proceeds or profits of the sale of any such property, or shall fraudulently fail to pay over any such proceeds after deducting charges or usual commission ; and any consignor of any property or his agent, not being the absolute owner thereof, who, with intent to defraud, after delivery thereof for transportation on any wharfboat, water craft, vehicle, or to any common carrier, shall in any way stop, countermand, or change the consignment thereof, or shall sell, dispose of, or incumber such property, during transit, after the delivery thereof, or shall in any way convert the same to his own use or the use of any other person than the true owner thereof or the person entitled to the benefit thereof; and every person or officer of any corporation who having given a receipt for agricultural products, or any goods, wares or merchandise, whether such receipt shall have been given to the owner of said property or issued as security on the same, shall sell, dispose of, incumber, or in any way convert the same or any part thereof to his own use, or to the use of any person other than the one entitled thereto or to the benefit thereof * * * steals such property, and shall be guilty of larceny. Rev. Laws, 1905, Sec. 5078, sub. sec. 3. See sections 5081 to 5083, inclusive, for definitions of the different degrees of larceny. Fictitious vi^arehouse receipts: — Every person carrying on the business of a warehouseman, wharfinger, or other depositary of property, who shall issue any receipt, bill of lading, or other voucher for grain or merchandise of any kind 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 the same shall be issued to a person as owner, or as security for any indebtedness, shall be punished by imprisonment in a county jail for not more than one year, or by fine of not more than one thousand dollars, or by both ; but no person shall be convicted under this section or section 5121 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 contained in such instru- ment, if such description corresponds substantially with the mark, label, or brand upon the outside of such vessel or package, unless MINNESOTA LAWS. 485 it appears that the defendant knew that such marks, labels, or brands were untrue. Rev. Laws, 1905. Sec. 5122. Duplicate receipts — Selling stored property, etc.: — Every person mentioned in sections 5121, 5122, who shall issue any second or duplicate receipt or voucher of a kind specified in said sections, while a former receipt or voucher for the grain or mer- chandise specified in such second receipt is outstanding and un- cancelled, without writing across the face of the same the word "Duplicate," in a plain and legible manner, and every such person who shall sell or pledge any merchandise for which a bill of lading, receipt, or voucher has been issued by him, without the consent thereto in writing of the person holding such bill, re- ceipt, or voucher, shall be punished by imprisonment in a county jail for not more than one year, or by fine of not more than one thousand dollars, or by both. Id. Sec. 5123. Person operating elevator to list: — Every person, firm or corporation operating a grain elevator or warehouse in this state shall at the time by law provided for the listing of personal property for taxation furnish to the assessor of the assessment district wherein such elevator or warehouse is situate a full and true list or statement of all grain, specifying the respective amounts and different kinds thereof received in or handled by such elevator or warehouse for and during the year immediately preceding March 1st of such year in which such list or statement is so to be made. Rev. Laws, Supp. 1909, Sec. (1038) 34. Amount of tax: — Every such person, firm or corporation shall in lieu of all other taxes upon such grain pay thereon one- fourth of one mill per bushel upon all wheat and flax and one- eighth of one mill i)er bushel upon all other grain received in or handled by such elevator or warehouse during such preceding year. Id. Sec. (1038) 35. How levied, paid and distributed: — Such tax shall be levied, paid and collected, and distributed in the same manner as other taxes on personal property are levied, paid, collected and dis- tributed in the county wherein such elevator or warehouse is situated. Id. Sec. (1038) 36. Refusal to list — Assessment: — If any such person, firm or corporation fails or refuses to so make such list or statement at the time above provided, the assessor shall deliver a statement 486 MINNESOTA LAWS. in writing slunvinj:^ siicli failure or refusal to the county board of cciualization of such eounly and thereupon the said county board of equalization shall place upon the assessment rolls such amount of such grain as to them may seem just and proper. Id. Sec. (1038) 37. Right of inspection: — For obtaining information regard- ing suspected violations of law, the commissioner and his em- ployees shall ha\e access to all i)laces where any article of food or other article the manufacture or sale of which is restricted, regulatetl or prohibited by this chapter, is or may be manufac- tured, prepared, stored, ke])t for sale or sold, or where cows or other animals are pastured or stabled, to cars or other carriages used for transportation of such articles or animals, and to places where food is or may be cooked, prepared, sold or kept for sale to or for the public, or distributed as a part of the compensation of servants and agents, including public and private hospitals, lumber and railroad camps, inns, boarding and eating houses, drinking places, dining cars, boats and other places where any of said articles may be sold, and they may inspect any package or receptacle found therein apparently containing any article of food or ingredient thereof, or any other article the manufacture or sale of which is restricted, regulated or forbidden by this chapter, and may take samples therefrom for analysis. Any person ob- structing such entry or inspection, or failing upon request to assist therein, shall be guilty of a misdemeanor. Rev. Laws, 1905, Sec. 1736. Access to railroad cars, warehouses, etc. — Powers of com- missioner — Duties of carriers and warehouseman: — For the proper enforcement of the laws of this state, already or herein- after enacted, which may be designed to prevent, regulate or punish the sale or use of commodities for human, consumption which are deleterious to health and not true in name, the dairy and food commissioner, by himself, or employes of his depart- ment in addition to having the authority and powers otherwise conferred by law is authorized and empowered to have and take access to any and all railroad cars of every sort or nature trans- ported or being within this state, all railroad stations, storage houses, warehouses, or express offices, or other places wherein there may at any time be commodities shipped within this state from without designed for human consumption whether such MINNESOTA LAWS. 487 commodities have been sold or given away without the state, pro- vided such sale or gift was or is with the intent that such com- modities be delivered, had or used witliin the state, and the dairy and food commissioner by himself or the employees of his de- partment shall have the same power and authority to open any package, can or vessel, so shipped within this state from without, which contains or which he has reason to believe contains any such commodity to inspect the contents thereof and to take sam- ples therefrom for analysis, all after the same manner and with the same procedure as obtains by law in reference to similar commodities maiuifactured, sold or exposed for sale within the state. If it shall appear that any such commodity or com- modities so shipped within this state from without is of a char- acter or composition, the manufacture, sale or exposing for sale of which within the state is forbidden by any laws then in force as deleterious to health and not true in name, the dairy and food commissioner shall have the same rights and remedies, and shall enforce such rights and remedies against such commodity or commodities in the same manner as in the cases of similar com- modities when manufactured, sold or exposed for sale within the state. On receiving notice from the commissioner, or any authorized employe of his department that he desires to inspect the contents of any such package, can or vessel, containing, as he believes, any such commodity, it shall be the duty of any com- mon carrier, or warehouseman or their employes, or other per- son having the same in his possession, or under his control to withhold the same from delivery within this state such time as may be reasonably necessary for the inspection and analysis thereof. It is further made the duty of all common carriers and warehousemen and employes thereof to render the commissioner and his employes all the assistance in their power when so re- quired to effectuate the purpose of this act. In case such inspec- tion or analysis of any such commodity shall disclose therein ingredients deleterious to health and not true in name, as de- fined by any law of this state, such common carrier or ware- houseman, or employes thereof, shall on demand disclose to the commissioner the names and addresses of the consignor and consignee of the package, can or vessel containing the same and the commissioner shall, before proceeding further, as against such commodity, notify such consignor and consignee in writing at their respective addresses as so disclosed of the results of 488 MINNESOTA nCCISlONS. such inspection ami analysis. Any failure on the part of any common carrier, warehouseman, storage man, or employe there- of, to do or observe the provisions hereof shall be a misde- meanor. Rev. Laws, Supp. 1909, Sec. (1736) 1. 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 returning 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 stor- age was not a "warehouseman." See Nat. Ex. Bank of H. v. Wilder, 34 Minn. 149, modifying certain dicta in above case and distinguishing the same.) See also JVeiland v. Krejnick, 63 Minn. 314; Wetland v. Snmvall, 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 grain of the same grade, and that this was done with the knowledge of the depositors, and that, if a depositor should demand the wheat, in- stead 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 there- of 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 conditions on which this wheat is received at this elevator are that Rieger (the warehouseman) has this op- tion : either to deliver the grade of wheat that this ticket calls for, or to pay the bearer the market price for the same, less ele- vator charges, on surrender of this ticket." Held that this did MINNESOTA DECISIONS. 489 not render the contract one of sale. It merely gave the ware- houseman 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. Rilger, 59 Minn. 151 ; State 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 concerns, 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 society, the business habits, and general usage peculiar to the time and country. That what is done by men of ordinary 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 cus- toms 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. 1.33. Rights of depositors — Title to goods — Commingling grain:— A deposit of grain for storage is a bailment, the title remaining in the depositor, so that he is deemed to be the owner of the grain in the warehouse to the amount of his deposit, although the identical grain he deposited has been removed, and other grain, of like kind 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 is the proper party upon whom to make demand for the delivery thereof, by the per- son claiming title thereto. Lundberg v. Northwestern Elevator Co., 42 Minn. 37. Conversion — Sale by zvarehouseman — Owners may follow goods: — If a warehouseman sell as his own, out of a common •*"^0 MINNKSOTA DECISIONS. mass of grain in his warehouse, any in excess of that which he personally has stored there, it is a conversion, his sale passes no title and the owners, the depositors, may follow the c^rain into the hands of the purchaser and recover of him. //(/// w Pillsbury ct (//.. 4o Minn. .>.v Sdinc—Siiiiic — Fraud III rut sale by ivarchoiiscinaii — liquity:-- \ warehouseman received wheat, for storage, from different depositors, and mingled the same in a common mass, issuing re- ceipts for the same to the various owners. The warehouseman, after ha\ iiig fraudulently sold a large quantity of the wheat, absconded. The creditors thereupon attached all the wheat re- rnaining 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 re- maining in the warehouse, the court Jicld 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. Hammergcn \. Schucrmier ct ol., 1 McCrary. 434; Greenleaf ct al. v. Dozi's & Co., 8 Fed. Rep. 550. Same — IVrongfrd shipment by zvarehousemaii of grain stored — Demand by receipt holder: — A demand by the holder of a warehouse receipt for grain deposited for storage, for the amount represented by the receipt, is good notwithstanding that, by rea- son of removal of grain by the warehouseman, there is not enough left in store to answer all the receipts. Lenthold et al. V. Fairchild et al., 35 Minn. 99. Same — Same — Liability of agent, knozvingly aiding in the wrong: — The agent of a warehouseman, who assists him in wrongfully disposing of the wheat, knowing that he is doing it wrongfully, is liable to the owners of the wheat. Id. 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 provided for by Gen. St. 1878, ch. 124, sec. 15. Wallace v. Minneapolis & Northern Ele- vator Co., 2)7 Minn. 464; Tarbell v. Farmers' Mutual Elevator Co.. 44 Minn. 471. MINNESOTA DECISIONS. 491 Ground of refusal — Estoppel: — Where a bailee places his re- fusal 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. IVallace v. Minneapolis & North- ern 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, held 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 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 Minn. 222. Warehouseman's lien for his charges and for freight, distin- guished: — The lien of a warehouseman upon goods for ware- house 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. Storage charges — Pledge for money advanced — Sale for: — A warehouseman having liens for storage charges and the right to sell, and also holding the warehouse receipt as security fur money advanced to the owner, should secure for the benefit of the owner of the property all that could be obtained to satisfy not only all charges, but for all valid liens under the pledges he holds. Wehh v. Downes, 93 Minn. 457, 461. Contract of storage — Evidence — Correspondence:— The. com- plaint herein alleged that the plaiiUitT sold and delivered, at 492 MINNESOTA DiaiSlONS. French. Minn., to the defendant, a quantity of wheat, for vvhidi it agreed to pay. at any future time when demanded, the then market price of wheat at Duhitii or MinncapoHs, less thirteen cents per bushel. Held that certain correspondence between the parties did not establish such contract. IVemple v. Northern Da- kota Elevator Co.. 67 Minn. S7. I. Grain in mass — Receipt holders tenants in common — When warehouseman tenant in common: — Where the grain of several depositors is deposited in a common mass, the receipt holders are tenants in common of the mass, the interest of each being lim- ited 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. Pillsbury, 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 con- tinuance of a pledge, yet this need not be actual physical posses- sion. The delivery of a recognized symbol of title, such as a warehouse receipt, which puts the pledgee in control and con- structive possession of the property, is sufficient. Nat. Ex. Bank of H. V. Wilder, 34 Minn. 149. Same — Commingled zvheat: — Where the pledged property is part of a larger uniform mass, as wheat in an elevator, separa- tion from such uniform mass is not necessary to constitute an appropriation of the property to the contract of pledge. The pledgee becomes tenant in common with the other owners. Id. Same — Substitution of other grain by warehouseman (pledg- or) : — Where a warehouseman has pledged the warehouse re- ceipts for his own wheat stored in his own warehouse, which wheat is commingled with that of his customers, and in the course of his business ships out the specific grain pledged and purchases 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, MINNESOTA DECISIONS. 493 and is appropriated to the contract as the property of the pledgee or depositor. Id. N. Loss by fire — Non-delivery due to a zvarelwtiseman's negli- gence — Liability: — If. by the negligence of a warehouseman, the owner of goods stored with him is unable to obtain posses- sion thereof, and. as a consequence, the goods remain with the warehouseman and are afterwards burned, although without the fault of the warehouseman, 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. Sayne — Removal of goods contrary to agreement — Bailee lia- }jle: — Where goods, which have been removed by the bailee from an agreed to another place of storage without notice to or con- sent of the bailor, are destroyed by fire the bailee is liable for the reasonable market value of the goods. McCurdy v. Wallblom Furniture & Carpet Co., 94 Minn. 326, 328. Negligence — Decay of apples in cold storage — Jury: — Where plaintiff stored apples in the cold storage warehouse of defend- ant 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. Tozvnsend v. Rich. 58 Minn. 559. Same — Injury in cold storage — Representations of warehouse- man in newspaper advertisements received in evidence: — Action for damage to celery caused by temperature in defendant's ware- hou.se not being kept at uniform degree. Held: That in view of conflict in the testimony, that the court did not err in admitting in evidence a certain newspaper advertisement published by defend- ant, which, after suggesting to the readers that they store but- ter and eggs with defendant, announced "uniform temperature" and "duplicate machinery." Also held that plaintiff, when dis- covering that the temperature was too high, notified the mana- ger of the condition but did not remove the goods, was not guilty of contributory negligence. Rettner v. Minn. Cold Storage Co., 88 Minn. 352. 494 M INN'llSttlA DFCl SIGNS. Same— Render ill (/ thciii /;/,s;Mvrj.— Defendants, warehouse- men, received ivom the iilaintifT. for storaj^^e. certain gjoods, she was to hear the risk trt)ni tire, and si) had the goods insured in the wareiiouse. In contenipUation of their removing the goods, at some indefinite time, to another warehouse, they agreed to give her notice when the goods were removed, so that she might have the insurance continued on tlicm in such warehouse. Defend- ants removed the goods Init failed to give notice to the plaintiff. By the removal the insurance l)ecame void. The goods were de- stroyed bv fire. Defendants had no authority from plaintiff to make any arrangements for insurance. Defendants testified, hut 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 de- fendants testified, it was no defense to an action for neglecting to give notice of the removal. Conovcr v. Wood, 48 Minn. 438; Brigham v. Wood, 48 Minn. 344. Same — Storage of cheese — Dripping brine pipes — Terms of receipt: — The defendant, a warehouse company, received from plaintiff a large amount of cheese for storage in its ware- house and issued to plaintifif 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, deterioration, defective cooperage, packing, ratage, vermin, leakage, fro.st. or from being peri.shable or otherwise inherently defective when stored." The overhead brine pipes used by defendant in keeping a low tem- perature in its storage room were covered with ice, and the de- fendant 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 defend- ant 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. Same — Burden upon tvarehouseman to show freedom from — When: — When the loss of stored goods is established the burden is upon the warehouseman of proving that the loss did not NriNNESOTA DECISIONS. 495 occur through his negligence. This burden is not merely a burden of going forward with the evidence, but a burden of establishing by a preponderance of the evidence freedom from negligence. Rustad v. Great Northern Ry. Co.. 142 N. E., 727. Measure of damages — JVhen conversion zvillfitl and when not — Ride stated: — Where the conversion of personal property is accidental and 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 tak- ing and conversion is willful and without color or claim of right, the measure 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. Q. Warehouse receipts — Expressed conditions as to payments to be made — Notice to purchaser: — In certain warehouse re- ceipts, 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 govern- ment and state tax. interest and charges." Held that although the words "payment of the whiskey" were indefinite and ambigu- ous, it was obvious that a prepayment of some character was re- quired in addition to the government and state tax, interest and charges. By the use of this language the ])laintifif was notified of an infirmity in the receipts, and he was bound to inquire its meaning (jr. failing to do so, suffer the consequences. Stein v. Rheinstrom et ol.. 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 suffi- cient to put a i)urchaser of the ])roperty upon inquiry as to the amount anfl character of the charges, and that the warehouse- man was \\(A esto])ped, as against such purcliascr. from as- 496 MINNESOTA DECISIONS. serting his licii for "advanced" charges. Security Bank of Miinii'stUa v. M iiiiiraf'i'lis ( "c/f/ Storaf/e Co., 55 Minn. 107. Santc — Saiiic — Contract of iiisuraiicc /».— A storage receipt for vvheiit deHvered at a public elevator, after stating the rate of storage, contained the following clause : "This charge for stor- age shall cover the loss by fire only; all other damage by the ele- ments, or by heating or riot, or l)y the act of God, or which in any way has been caused by 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. 7?^ Minn. .179. Same — Same — Modification of contract: — Further held in above case thai by a subsequent agreement modifying the con- tract so as to provide that no charge should thereafter be made for storing the grain, this implication as to insurance dropped out aiul 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 intended to fix the rate of storage and not the dura- tion of the bailment. Id. Same — Right given to commingle grain does not include right to sell: — In a warehouse receipt it was stated that express au- thority was given the warehouseman to mingle the grain with that of other persons and also to ship the same to other eleva- tors. It was held that such provisions did not authorize the warehouseman to dispose of such grain by sale. State v. Coiv- dery, 79 Minn. 94. Same — Written parts control printed: — In a contract for the storage of wheat by which a warehouseman had authority to sell, there was an inconsistency or conflict between the written and printed parts thereof ; it was held that the written parts con- trolled. Murray v. Pillsbury, 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 brought against him for their value by an assignee thereof. M'Neil v. Hill, 1 Woolworth, 96. Same — Irregular in form: — Plaintiff stored wheat with de- fendant, receiving memorandum tickets therefor. It was held MINNESOTA DECISIONS. 497 "While the railroad and warehouse commissioners are given power to prescribe the forms of wheat receipts and storage tickets ... it by no means follows that warehousemen may not, as between themselves, and wheat owners, accept grain for storage upon such terms as they see fit." But the warehouse- man cannot, because the receipts were not in statutory form, take advantage of that fact and retain the wheat. Kramer v. A'^. IV. Elevator Co., 91 Minn. 346. Same — Pledge by warehouseman: — The owner of goods, if a warehouseman, can pledge the same by issuing and delivering his own warehouse receipt to the pledgee. Nat. Ex. Bank of H. V. Wilder, 34 Minn. 149, modifying Fishback v. Van Dusen & Co., 33 Minn. 111. Same — Same — Warehouse act of 18/6: — 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 public warehouse (actually upon deposit in the warehouse), and the one who leaves it in store with the proprietor as his bailee, tak- ing a warehouse receipt therefor, following the rule laid down in Nat. Ex. Bank of H. v. Wilder, 34 Minn. 149. Eggers et al. V. Nat. Bank of Commerce, 40 Minn. 182. Same — Cold storage — Exemption from liability — 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 any of the excepted causes. Hunter v. Baltimore Packing and Cold Stor- age Co.. 75 Minn. 408. Same — Effect of delivery: — Delivery of the warehouse receipt is equivalent to an actual transfer and delivery of the property itself. .Immoti v. Gamble — Robinson Commission Co., 127 N. W. 448, 449, 450. Same — Negotiability — 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, although not in the form of an in- dorsement. State V. Loomis, 27 Minn. 521 ; Pease v. Rush, 2 Minn. 89. Same — Buiui fulc hnldcr protected: — A i)ublic warehouseman issued numerous receipts for wheat stored in ins warehou.se, 32 498 MINNESOTA DFXISTONS. SOUK' lit" which wore in iho haiuls of the [)laintilT, lie haxintj; ac- i|nireil them in j^ood t'ailh. The warehouseman then shii)i)e(l the wheat to defendants, eomniission nierehants. who sold the same and applied the proceeds to a debt due them from the ware- houseman. //(■/(/ this was a conversion on tlie part of defend- ants and that thcv were liahle to i)IaintitY for \alue of the wheat. nolliff V. Robbins, S?> Minn. 498. Sainr—Piircliascr of. must r.vcrcisc ordiiiarv pnidcticc: — The purchaser ot' what purports to be. or is said to he, negotiable pa- per, must exercise ordinary prudence in res])ect to knowledge de- ri\ed from an inspection of the ]);i])er. Sicin v. Kheiiistrom ct ai. 47 Minn. 476. Same — Implied contract of insurance passes zvith assignment: — \\'here a warehouse receipt contains an implied contract of insurance of the wheat stored, held that an assignment of such contract of msurance passed by a transfer of the storage receipt. Thompson v. Thompson, 78 Minn. 379. Same — Law yovcrnmy: — An insolvent grain ele\'ator company having its place of business in Minnesota operated grain eleva- tors in different states and had issued warehouse receipts on its own grain : these receipts specifying the amount of grain covered in each different warehouse. The receipts were pledged in dif- ferent other states as security for loans. In a suit between the general creditors and the holders of the receipts it was held as to priority of payment, that as contracts of pledge, the receipts are to be construed according to the laws of the state where the grain was actually located when they were issued. Sivedish American Bank v. First National Bank, 89 Minn. 98. Same — As collateral — Payments from bill of sale or from re- ceipts — Burden of proof on defendant — Judgment sustained by- findings: — According to the hndings 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 re- ceipts 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 a]:)ply to the indebtedness for which the pro]:)erty was security, and to use part in his own business. The payments sought to be recovered in this action MINNESOTA DECISK^NS. 499 were made out of the proceeds of property covered by either or both the warehouse receipts and the l)ill 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- ments except the $700. Clarke v. Nat. Citizens Bank of Man- kato. 74 Minn. 58. Same — "Exchange tickets" and "inspector's tickets" for sa)ne property both outstanding — Liability: — The defendant, a rail- road company, issued to the plaintifif, "inspector's ticket" for wheat stored with it, and, upon the presentation of the ticket to the agent of the railroad, it issued, in lieu thereof, in accordance with its custom, an "exchange ticket." It appeared that in some manner the original "inspector'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 plaintiff, for the wheat, the defendant refused to deliver, alleging that it had already made delivery thereof. The court held that the delivery by the defendant to one holding "inspector's ticket" was an aflfair between the defendant and its agent or such other person, with which the plaintifif had nf) concern, and that the plaintifif was. therefore, entitled to judgment against the de- fendant for the value of the wheat. Lewis et al. v. St. Paul & S. C. R. R. Co., 20 Minn. 260. Satnc — Informal receipts — irarchouscnian 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. Swarl. Minnciska, Sept. 29, 1866. The owner disposed of this receijA and after several transfers it became the property of the plaintiff. The warehouseman .storef] the wheat, rej^resented by thi^ receipt, in a separate bin and, when the plaintifif demanded the same of him the identical wheat was tendered for delivery. The plaintifif declined to re- 500 MINNliSOTA DECISIONS. oci\c the same on the i^round that it was inferior to No. 2 wheat, as stated on the receipt. In an action against tlie warehouse- nian. it was held tliat tiiis receipt contained no representation that the defendant had agreed to deliver to Foster, or his assigns. \o. 2 wheat ; that it cHd not constitute the contract between the warehouseman and Foster and. to ascertain what this agreement was, it was necessary for the plaintiff to go outside of the receipt and to in(|uire for the other facts. Further, that the defendant was not estopped by the terms of this receipt. Robsoii v. Swart, 14 Minn. 371 ; Ilcrrick ct 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 gi\ing 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 receiving, shijiping and sell- ing. Murray v. Pillsbiiry, 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 de- fenses, 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 estopped 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 an 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 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 — Firm name: — Defendant, Thompson, was doing business in the name of Smith & Thompson, and the MINNESOTA DECISIONS. 501 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 defendant was doing business under such firm name. Thompson v. Thompson, 78 Minn. 379. Same — Conversion of ivheat — Evidence: — Rule applied and evidence considered in an action, by the holder of storage re- ceipts 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 ])laintiffs. and that it did not require, as a matter of law, a finding that they consented 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 hank discounting draft — Conversion: — Y.. a warehouseman, having in his warehouse wheat deposited by others for storage, shipped it without their consent to Chicago ; took bills of lading in which the bank of K. was named as con- signee ; 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 pay- ment of the drafts delivered the bills of lading to the drawee. Held that this did nc^ render the bank liable, as for a conver- sion, to the owners of the wheat. Lenthold et al. v. Fairchild et al., 35 Minn. 99. T. hidict)ncnt of 7i'archouseman — Mingling grain — Failure to shozv intent to defraud: — A warehouseman was indicted for larceny, as bailee in fraudulently appropriating a quantity of flax. The warehouse receipts whicli Ik- had issued gave him the right to commingle the grain or put it in other elevators, but not the 5U2 iMlNNM'.SOIA DI-AlSldNS. ritjht to sell. Il was hold liic transaction was under the statutes of the state and the warehouse receipt, a hailnicnt and not a sale hut that as there was an ahscncc of facts to estahlish the wrongful intent, as re(|uired by the statute, a new trial wouhl ])e granted. State v. Cowdcry, 79 Miiui. 94. U. Building i/rai)i 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 purchase 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 exer- cise 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 prt)vides for the state itself engaging in carrying it on. Ruppe v. Becker, 56 Minn. 100. Same — /;/ 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 lazv: — The provision in Laws, 1895, ch. 149, sec. 11, requiring railroads and transpor- tation companies to turn over to a storage company or public warehouse all property which the consignee fails to call for or receive within twenty days after notice of its arrival, is uncon- stitutional and void. State of Minnesota v. Chicago, M. & St. P. Ry. Co., 68 Minn. 381. IWirehouse for owner's grain — Must have license — Laws, 1895, ch. 148, applicable and held constitutional: — The defendant oper- ated a grain warehouse, in a village in this state, in which no grain was stored Init 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. ?Jeld that the business so carried on was of such a public character, and sufficiently affected with public interest, that the legislature could require persons operat- ing such warehouse to take out a license therefor as provided in Laws, 1895, ch. 148, and that this requirement was not repugnant MINNESOTA DECISIONS. ^03 to the Constitution of the United States. State ex rel. Railroad and Warehouse Commission, etc.. v. IV. ]V . Cargill Co.. 77 Minn. 223. aff'd 180 U. S. 452. Contracts exempting liability from loss— Public policy: — Plain- tiff, under a contract with a railroad company, had erected a grain elevator on its right of way. The contract contained a provision saving the railroad company harmless for loss occa- sioned by fire communicated by its engines. Held: in action by warehousemen for loss, that such contract was not void as against public policy. James Quirk Milling Co. v. Minneapolis & St. L. R. R. Co., 98 Minn. 22. Taxation — JVarehousemaii not liable for tax on stored grain, ufhen: — A grain warehouseman is not compelled to pay taxes on grain stored with him for which warehouse receipts have been issued to the owners thereof. State v. Nortlnvestern Elevator Co.. 101 Minn. 192. 504 MISSISSIIM'I LAWS. C11A1M<:U XXIV MISSISSIPPI LAWS 1'LKTA1N]N(J TO WAREHOUSEMEN Sale of goods for — When the consignee or owner of any goods or articles transported on any railroad cannot be found or refuses to receive the same or pay the charges, or neglects to do so for a period of sixty days after notice addressed to the consignee and deposited in the post-office, ap]:)lication may be made by the railroad company 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 transported by the company, and that the con- signee or owner cannot be found, or refuses or neglects to pay the costs and charges of transportation, or to receive the goods, the justice shall issue an order directed to the sheriff, or any con- stable 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 super- visors, if applied for within two years, but not afterwards. Perishable goods may be sold, according to the exigency, if not immediately called for and taken. Code, Miss. 1906, sec. 2293. The same extended to watercraft and warehousemen: — The owners of steamboats and other watercraft, and warehousemen, have the right to enforce charges for 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. 2294. Warehouse receipt as evidence : — Every warehouse receipt or other instrument in the nature or stead thereof acknowledging MISSISSIPPI DECISIONS. 505 the receipt of property for storage or safekeeping shall be con- clusive evidence in the hands of a bona fide holder for value, whether by assignment, pledge, or otherwise, as against the person or corporation issuing the same, that the property has been so received and shall entitle such bona fide holder for value, of such receipt, to a delivery of the property so stored or deposited, or to the value thereof. Id. sec. 2295. DECISIONS AFFECTING WAREHOUSEMEN B. Ordinary care and diligence: — It is only required of a ware- houseman that he should exercise reasonable and ordinary dili- gence in the keeping and preservation of articles intrusted to him, such as men exercise in their own private aflfairs. Cowles V. Pointer, 26 Miss. 253; Archer et al. v. Sinclair et al., 49 Miss. 343; ///. Cent. R. R. Co. v. Tronstine & Co., 64 Miss. 834; Mer- chant's Wharfboat Assn. v. Wood & Co., 64 Miss. 661 ; Yazoo & M. V. R. Co. V. Blum, 59 So. 92. Same — Construction of ivarehouse — Requirements: — A ware- houseman is not required by law to construct his buildings secure from all possible contingencies, but they are sufficient if reason- ably and ordinarily safe against ordinary and common occur- rences. Cowles 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 policy, and is a specific or particular lien which attaches to each separate bailment and is lost when the particular articles of each bailment 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, alleging that he had made tender of all charges due there- on and the warehouseman refused to deliver unless plaintiff also paid charges upon cotton previously stored and delivered, judg- ment was given for the plaintiff. Shingleur-J ohnson & Co. v. Canton Cotton Warehouse Co., 78 Miss. 875. Same — Landlord not entitled to rvarchouseman's lien: — A lessee abandoned his lease and left certain goods on the premises. 506 M ississi rri di-aisions. The landlord nolilicd the Iioldcr of the chattel trust on the floods that he would look to the holder of the trust for the payment of the aeerued rent. In a replex in suit for possession of the f^^oods the landlord claimed a warehouseman's lien on them. Held: that no warehouseman's lien arose under ch. 52, ])p. 44 and 45, Act 1894. and there was no implied lien as a,c:ainst the mortgagee who was not the owner of the ])roperty. Brunsivick-Balke-Col- lendcr Co. v. Murphy. 42 So. 288. Same — Section 2682. Code. 1802, 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 con- nected therewith, is not supported hy any reasonahle construc- tion of that statute. Id. K. Property taken under legal process — Duty and liability of bailee: — If cotton, stored in a warehouse, be seized, under legal process, against any other per.son than the warehouseman or the owner, and the warehouseman give notice of such seizure and of all facts knowm 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 wdiom 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 described, at any time before this MISSISSIPPI DECISIONS. 507 institution of the suit, he had established a prima facie right to recover. Mortimore v. Ragsdale, 62 Miss. 86. Negligence — What is prima facie: — When a bailor shows that goods are delivered to his bailee in good condition and are lost or destroyed or returned in a damaged condition, this fact creates a prima facie presumption of negligence; and it thereupon de- volves u])()n the bailee to absolve himself from negligence. Vazoo & AI. I '. R. R. Co.. v. Hughes. 47 So. 662. 663. Same—Jrheii prima facie presumption of, does not arise: — Plaintiff agreed with agent of defendant to store certain baggage in defendant's wareroom for an indefinite time, paying storage thereon. The goods were destroyed ])y fire but no evidence was introduced on either side as to the circumstances and origin of the fire. Held: That in the absence of proof as to the cir- cumstances of the fire, tlie defendant was improperly held to be l)rima facie negligent, since the destruction of property by fire is entirely consistent with ordinary care. Vacoo & M. V. R. R. Co. v. Hughes. 47 So. 662. Same— Burden of proof— Rule stated:— In an action by a l)ailor against a bailee for the destruction of or injuries to the chattel while held under the bailment through the negligence of the latter, the burden of proof shifts from one side to the other, and rests with the plaintiff or the defendant, upon the develop- ment of the evidence. It is on the plaintiff to show the bailment, that the defendant took the proi)erty under it. and returned it in a damaged condition, or did not return it at all. Tt is also, it seems, with him to show the condition of the chattel when it was delivered to the defendant. Tf the ])roperty was in good con- dition fr)r the uses of the bailment, and it is not returned, or returned in an injured state, or if. though there be an infirmity or defect in the chattel, but the injury sustained by il is not of a character attributable to such defect (as. for instance, where a leaky boat is let. and is injured by an explosion of gunpowder), the burden i> on tlir bailee, since in either of the cases put, the injury would not have happened in the ordinary course of things had he been jn-udent and diligent; not. indeed, to acquit himself of all negligence. l»ut to show a cause producing the injury which prima facie did not arise or result from or oi)erate on account of a want of ordinary care f)n bis part. This being done, the burden shifts back to the plaiiitifi' lo affirmatively show some 508 MlSSlSSll'l'l DI'X'ISIONS. negligence on the part of the dofcndant. )'a.::<)o I'V M. / '. R. R. Co. V. IJuqhcs. 47 So. 662. 664. O. Measure of damages — Conversion: — Certain cotton was lost by a warehouseman and there were several conferences between the plaintiff and defendant in relation to the loss. The plaintiff agreed to a delay until defendant could trace the cotton. After three years suit was brought. Held: that the value of the cotton at I he time of the conversion is ordinarily the measure of dam- ages and plaintiff was entitled to recover the value of the cotton I he date its loss by the compress company became known, to- gether with interest. Hattiesburg Compress Co. v. Johnson, 81 Miss. 731. P. Same-^N egligence of carrier employed by ozvner cannot be imputed 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 evidence showed that the owner knew nothing of this arrangement, and that the warehouse con- taining the cotton was destroyed without negligence on the part of the warehouseman. In an action by the owner against the warehouseman, the contention was made by the defendant that if the place where the cotton was stored was dangerous, it was known to the railroad company, and, as it was the agent of the owner, such knowledge was imputable to the owner. It was held that this contention could not be sustained. It was further held that an instruction to the jury that the conditions and surround- ings of the place in which the cotton was stored constituted a warning to the defendant of the danger of fire, and that although the fire did not originate from either of the enumerated condi- tions that the defendant was nevertheless responsible therefor, was erroneous. Merchants' JVharfboat Assn. v. JVood & Co., 64 Miss. 661. Q. Warehouse receipts — Negotiability — Transfer without indorse- ment: — A warehouse receipt provided that it was transferable only Ijy indorsement and delivery thereof. In a case where the property, represented by such a receipt, was sold, and there was MISSISSIPPI DECISIONS. 509 no indorsement of the receipt made, it was held that, as be- tween the parties, this was a vaHd transfer of the property. Shinyleiir-Johnson & Co. v. Canton Cotton Warehouse Co., 78 Miss. 875. Same — Delivery ivithont the return of receipts to true owner — Burden of proof: — Property stored in a warehouse, for which A held the receipt, is sold by him to B. but the receipts therefor were not transferred to B. In such a case, it was iield that a de- livery by the warehouseman to B, of the property represented, was legal, notwithstanding that the receipts were not taken up by the warehouseman and were not indorsed to B, for such delivery was one to the true owner. But the burden of establishing the right of B to receive the i:)roperty was upon the warehouseman. Mortimore v. Ragsdalc. 62 Miss. 86. Same — Issuance by mistake no defense: — Even though a ware- house receipt was issued by mistake, a warehouseman cannot be permitted to assert, as against a subsequent bona fide holder of such receipt any defense, unless predicated of fraud, or one of those expressly provided for in the receipt. Star Compress & Warehouse Co. v. Meridian Cotton Co., '?7 Miss. 228, 231. Same — Action by assignee of unindorsed receipt — Objection must be made at trial: — The plaintifif purchased certain property and obtained warehouse receipts representing the same. The re- ceipts were not indorsed to him. In an action of replevin brought bv him against the warehouseman for the recovery of the prop- erty, it was held, by the appellate court, that, as no objection had been made in the trial court to the receipts because not in- dorsed, objection now made, for the first time, comes too late. Shingleur-Johnson & Co. v. Canton Cotton Warehouse Co., 7^ Miss. 875. Same — Exemption from loss by fire and zcater: — Defendant received for storage certain cotton and issued a recei])t contain- ing a provision "Not responsible for loss or damage by fire or water." .\ large quantity of the cotton was placed on the ground in an open iKld, ."^uit was brought for damage to the cotton. Held: that the clause in tlic receipt e.xemiUing the company from fire and water damage had no reference to damage resulting from ex])osure to the ordinary actions of the elements. The exemption related tn flamages resulting from some disaster. The bailee f)10 M ississi iTi iu:risi()Ns. lunl 11(1 riolu t(i (.■\ii()>c llio collou in the wcallicr and tluis j)r()duce the daniajjc wiiich (M-(iinary care wcnild liave avoided. Grenada Cotton Compress Co. v. Atkiusoii. 47 So. 644. R. Bill of laduui — Exceptions therein: -Common carriers may obviate the rigor of the law liolding them lial)lc 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 "inc7'itable accident": — A provision in a bill of lading providing that a carrier was not responsible for loss resulting from "inevitable accident" iicld that this phrase was synonymous with "act of God." Neal v. Saunderson, 2 S. & M. 572. Same — Not conclusive as to oivnership: — 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 there- by. Testimony will be received to establish the facts as to the real ownership. Fast v. Canton. A. & N. R. R. Co., 77 Miss. 498. .MISSOURI LAWS. ^11 CHAPTER XXV MISSOURI L.WVS PERTAI.MXG TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Missouri. It was approved .April 12, 1911. Laws Missouri, 1911, p. 431. Also this volume, p. 1. Warehouses and storehouses declared public warehouses: — That all warehouses or storehouses situated in cities of over fifty thousand inhahitants, and wherein other property than grain is stored for a compensation, are declared to be public warehouses. Rev. Stats. Mo.. 1909, sec. 11946. License for pubUc warehouse: — The proprietor, lessee or manager of any ])ublic warehouse pro\ided for by this chapter 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 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 transact business as a public warehouseman 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 individual name of each person interested as owner or princii)al in the man- agement of the same, or if the warehouse be owned by 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 conduct the business of a imblic warehouse, other than a warehouse Un the storage of grain, in accijrdance with the laws of this state and shall be revocable by the said court upon a summary proceeding before the court, ui)on the complaint of any person, in writing, setting forth the particular violation of the law to be sustained by satisfactory proof, to be taken in ^nch nianmr as may l)e directed bv the court. Id. ^ec. 1 T'lJ. 512 MISSOURI LAWS. Public warehouseman to give bond: — The person or per- sons receiving a Hceiisc uiukr ihc prox isions of this cliapter shall tile with llie clerk oi the court granting the same, a bond to the people of the slate of Missouri, with good and suffi- cient security, to he approved by said court, in the penal sum of twenty-hve thousand dollars, conditioned for the faithful performance of his or their duties as public warehouseman or warehousemen, and as security for the payment of all penalties and damages found and adjudged by due course of law, for viola- tion of any clause of this chapter, and his or their full and unre- served compliance with the laws of this state in relation thereto. Id. sec. 11947. Above section construed — Bond — Breach of condition — Damages: — Action on a bond conditioned (among other things) "for the faithful performance of his duty as a public warehouseman." Held: The implied contract of a warehouse- man on receiving goods for storage is that he will use ordinary care in keeping them, and it is his main duty to make delivery when the bailment terminates. The faithful performance of this common law and contractual duty the defendant as a warehouse- man by his bond covenanted to perform. The obligation of the bond sued on is one of indemnity and in such cases damage must be sustained before a recovery can be had. The recovery will be limited to nominal damages until substantial damages have been proven, but a recovery of substantial damages may be had where they are the natural and proximate consequence of the breach. Judgment for plaintiff affirmed. Fissette v. Sullivan, 99 Mo. App. 616. Same — Surety not discharged by bankruptcy of principal :— The principal on a bond, a warehouse company, was declared a bankrupt and entered into a composition with its creditors. In a suit by the holder of a warehouse receipt against the principal and its surety on a warehouse bond, it was held that the fact that the principal was discharged from its liability on the debt did not operate in any manner to discharge the surety on his bond. State ex rel First National Bank v. Federal Union Sure- ty Co., 156Mo. App. 603, 609. Transacting business without a license— Penalty :— Any person or persons who shall transact within a city of over fifty thousand inhabitants, the l)usiness of storing for compensation MISSOURI LAWS. 513 other property than grain, without tirst procuring license and giving a bond as herein provided, or who shall continue to trans- act such business after such license has l^een revoked, or such bond may have become void or found insufficient 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 mis- demeanor, and upon conviction be fined in a sum not less than SI 00 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 whose license has been revoked, within one year from the time same was revoked. Rev. Stats. Mo. 1909. sec. 11949. Property to be sold for storage charges: — If the owner of any goods, merchandise, or other property 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 given either 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 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 j^aid 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, subject to the order of the owner. Id. sec. 11950. Warehouseman, etc., not to issue receipt until goods actu- ally in store: — No warehouseman, whartingcr. or other person, shall is.sue 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 own- ers thereof, unless such goods, wares, merchandise, grain, or 33 •'^H MISSOURI LAWS. Other produce or coniniodity, shall have been actually received into store or upon ihe premises of sucli warehouseman, wharf- inger, or othei person, and shall I)e in the store or on the premises aforesaid and under his control at the time of issuing such re- ceipt, fd. ^Qc. 11951. 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 indebt- edness, 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. 11952. Not to issue second receipt — When: — No warehouseman, wharfinger, or other person, 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 outstand- ing and uncancelled, without writing across the face of the same "duplicate." Id. sec. 11953. Not to sell, etc., goods without written assent of person holding receipt: — No warehouseman, wharfinger, or other per- son, shall sell or incumber, ship, transfer, or in any manner remove, or permit 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. 11954. Not to give shipping receipt until goods are actually on boat, etc. : — No master, owner or agent of any boat or vessel of any description, forwarder, or officer or agent of any rail- road, transfer or transportation company, or other person, shall sign or give any bill of lading, receipt or other voucher or docu- ment for any merchandise or property, by which it shall appear MISSOURI LAWS. 515 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 conveyed as expressed in such bill of lading, receipt or other voucher or document. Id. sec. 11955. Receipts, bills of lading, etc., declared negotiable: — All re- ceipts 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, wares, merchan- dise, 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 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 affect any negotiation there- of, 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 aft'ect the rights, duties or liabilities created or declared in this chapter, shall be void and f)f no force or effect. Id. sec. 11956. How transferred — Lien created — Exception: — 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 deposited, and all bills of lading anrl transportation receipts of every kind, given by any carrier, l)oat, vessel, railroad, transportation or transfer company, mav be transferred l)v indorsement in writing thereon, and the de- livery thereof so indorsed, and any and all persons to whom the same may be so transferred shall be deemed and Jicld to he the owner of such goods, wares, merchandise, 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 ])roperty so stored or deposited, as specilied in such bills of lafling or recei])ts. shall be delivered, except on sur- render and cancellation of snrli receipts and bills of lading: Provided . however. That all surli rciH'i])!^ am! bills of lading, which >liall ha\e the wcjrds not negotiable plainly written or ;"»lt^ MlSSdlKl LAWS. stamped on the face thereof, shall he exempt from the provisions of tills act. Id. sec. 11957. Penalty for violation of certain sections of this chapter: — .\ny warehouseman, wharfino^er. forwarder or other person who shall violate any of the provisions of sections 11951 to 11960, inclusive, of this chapter shall he deemed guilty of a criminal offense, and, upon indictment and conviction, shall be fined in any sum not exceeding five thousand dollars, or imprisoned in ilu' 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 said sections may have and maintain an action at law against the i:)erson or persons, corporation or corporations violating any of the provisions of said sections, to recover all damages, immediate or consequential, which he 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 said sections or not. Id. sec. 11958. Certain sections applicable to bills of lading: — All the provi- sions of sections 11951 to 11960, inclusive, of this chapter shall apply and be applicable to bills of lading, and to all persons or corporations, their agents or servants, that shall or may issue hills of lading of any kind or description, the same as if the words forivarder and bills of lading were mentioned in each of said sections of this chapter. Id. sec. 11959. Exception as to application: — So much of the nine preceding sections of this chapter 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 apply to property replevined or removed by operation of law. /(/. sec. 11960. Repealing and re-enacting article 2 of chapter 60 and defin- ing the word commissioner: — That article 2 of chapter 60 of the Revised Statutes of Missouri. 1909, relating to inspection of grain and hay, is hereby repealed and the following new sec- tions enacted in lieu thereof, relating to inspection and weighing of grain, abolishing the office of railroad and warehouse com- missioners, creating the office of warehouse commissioner and fixing his powers and duties, The word "commissioner," when MISSOURI LAWS. ^^^ used in this act, means the warehouse commissioner hereby created. An Act to repeal article 2 of chapter 60 of the Revised Statutes of Missouri, 1909, relating to inspection of grain and hay, and to enact in lieu thereof a new article, to be known as article 2, relating to inspection and weighing of grain, abolishing the office of railroad and warehouse commissioners, creating the office of warehouse commissioner and fixing his powers and duties, with an emergency clause. Approved March 20, 1913. Laws Mo.. 1913. page 354, sec. 1. Railroad and warehouse commissioners, office abolished — warehouse commissioner — office created — powers and duties: — The office of railroad and warehouse commissioners is hereby abolished, and the office of warehouse commissioner is hereby created and established, and said commissioner shall be vested with and possessed of the powers and duties in this act specified. Id. sec. 2. Warehouse commissioner — appointment of — tenure of office — vacancy, how filled: — 'I'he governor shall, by and w^ith the advice and consent of tlie senate, appoint the warehouse com- missioner for a term of six years, such term to begin on the date of the taking effect of this act. Upon the expiration of .said term, and thereafter, a commissioner shall be appointed for four years from the time of his appointment and qualifica- tion and shall serve until his successor is appointed and quali- fies. Any vacancy occurring by removal, resignation or death, shall be filled by the governor for the unexpired term. Id. sec. 3. Commissioner may be removed, how: — The Governor may remove the commissioner for inefficiency, neglect of duty, or misconduct in office, giving to him a copy of the charges against him and an opportunity of being publicly heard in person or by counsel, in his own defense, upon not less than ten days' notice. If such commissioner shall be removed, ihc governor shall file in the office of the secretary of state a complete state- ment of all charges made against .such commissioner, and his findings thereon, together with a complete record of the proceed- ings. The legislature also shall have the power, by a two-thirds vote of all members elected to each house, after ten days' notice in writing of the charges and a public hearing, to remove the 518 MISSOURI LAWS. commissioner from office for dereliction of duty, or corruption, or incompetency. Id. sec 4. Commissioner, inspectors and assistants — Salaries of: — The annual salar\ ol the commissioner shall be four thousand five hundred dollars. The commissioner shall fix the amount of compensation to be paid to the chief inspector, deputy chief in- spector and assistant inspectors, clerks, stenographer and all other persons employed in the service of inspecting and weigh- ing grain and prescribe the time and manner of payment : Pro- vided, that the annual salary of the chief inspector shall not exceed $2,500; that the annual salary of the deputy chief in- spector shall not exceed $2,000; that the annual salary of the supervising inspector, an assistant inspector, a registrar, a chief clerk or a clerk shall not exceed $1,800; that the annual salary of a weigher or a helper shall not exceed $1,500 and that the annual salary of a stenographer shall not exceed $1,200. Jd. sec. 5. Commissioner — oath of office — bond: — Before entering upon the duties of his office the commissioner shall make, sub- scribe to and file with the secretary of state, the following oath : "I do solemnly swear (or affirm), that I will support the Con- stitution of the United States and the Constitution of the state of Missouri, and that I will faithfully discharge the duties of warehouse commissioner according to the best of my ability and that I will correctly account for all moneys collected by me or coming into my hands as commissioner." The commissioner shall enter into a bond, with security, to be approved by the governor, in the sum of twenty thousand dollars, conditioned upon the faithful performance of his duty and a correct account- ing of funds. Id. sec. 6. Chief inspector — appointment — duties of: — -It shall be the duty of the commissioner to appoint a suitable person, who shall not be a member of a board of trade, who shall not be interested either directly or indirectly, in any warehouse, elevator or in grain merchandising in this state, who shall be a grain expert, and who shall be known as the chief inspector of grain for the state of Missouri, whose term of service as such shall continue for four years and until his successor is appointed and qualified. It shall be the duty of the chief inspector to have a general supervision of the inspection of grain, as required by this article MISSOURI LAWS. 519 or laws of this state, under the immediate direction of the com- missioner. Id. sec. 7. Public warehouses — public warehousemen :— All buildings, elevators or warehouses wherever state grain inspection may be established by the commissioner and having a capacity of not less than fifty thousand bushels, erected and operated, or which hereafter may be erected or operated, by any person or persons, association, co-partnership or corporation, for the purpose of storing the grain of different owners for a compensation, are hereby declared public warehouses and the person or persons, as- sociations, co-partnerships or corporations owning such build- ing or buildings, elevator or elevators, warehouse or warehouses, which are now or may hereafter be located or doing business within this state, as above described, whether said owners or operators reside within this state or not, are public warehouse- men within the meaning of this section. Id. sec. 8. License for public warehouse or public elevator — Issued by whom — how: — The proprietor, lessee or manager of any pub- lic warehouse or public elevator shall be required, before trans- acting anv business in such warehouse or elevator, to procure from the circuit court of the county in which such warehouse or elevator is situated, — or if to procure license for a public ware- house or public elevator in the city of St. T.ouis. application shall be made to the circuit court of said city — a license per- mitting such proprietor, lessee or manager to transact business as a public warehouseman or public elevatorman 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 cjf such warehouse or elevator and the individual name of each person interested as owner or principal in the management of the same; or if the warehouse or elevator be owned by or managed by a corporation, the name of the presi- dent, 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 or ])ublic elevator in accord- ance with tlu- laws of this state, and shall be revocable by the said court upon a suniniarv ])roceeding before the court upon the complaint of any person, in writing, setting forth the particular violation of the law, to be sustained by satisfactory proof to 520 MISSOURI LAWS. be taken in such manner as may be directed by the court. Id. sec. 9. Public warehousemen to give bond — schedule: — The person (ir iKMsons receiving a license as herein provided shall file with the clerk ot' the court granting the same, a bond to the people of the state of Missouri, with good and sufficient security to he approved by said court, in the penal sums as per the following schedule of capacities by measurement : For a public warehouse or public elevator with a capacity of 50,000 bushels or less, two thousand five hundred dollars; for a public warehouse or public elevator with a capacity of more than 50,000 bushels and not exceeding 100.000 bushels, five thousand dollars; for a public warehouse or ])ublic elevator with a capacity of more than 100,- 000 bushels and not exceeding 200,000 bushels, ten thousand dollars ; for a public warehouse or public elevator with a capacity of more than 200,000 bushels and not exceeding v300,000 bushels, fifteen thousand dollars; for a public warehouse or public ele- vator with a capacity of more than 300,000 bushels and not ex- ceeding 400,000 bushels, twenty thousand dollars; for a public warehouse or public elevator with a capacity of more than 400.- 000 bushels and not exceeding 500,000 bushels, twenty-five thousand dollars ; for a public warehouse or public elevator with a capacity of more than 500,000 bushels and not exceeding 750,- 000 bushels thirty-seven thousand five hundred dollars ; for a iniblic warehouse or public elevator with a capacity of more than 750.000 bushels and not exceeding 1,000,000 bushels, fifty thou- sand dollars; for a public warehouse or public elevator with a capacity exceeding 1.000.000 bushels one hundred thousand dol- lars — conditioned for the faithful performance of his or their duties as public warehouseman or warehousemen, elevatorman or elevatormen. as security for any penalties found by due course of law for violation of any clause of this article, and his or their full and unreserved compliance with the laws of this state in relation thereto. Id. sec. 10. Transacting business without license — penalty: — Any per- son or persons who shall transact the business of public ware- houseman or warehousemen, elevatorman or elevatormen, with- out first procuring license and giving 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 MISSOURI LAWS. -^21 insufficient security for the penal sum in which it is executed by the court approving the same save only that he may be per- mitted to deliver property previously stored in such warehouse or elevator, shall be guilty of a misdemeanor and upon con- viction be fined in a sum not less than one hundred dollars nor more than five hundred dollars 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 the same was revoked. Id. sec. 11. Public warehousemen or elevatormen — duties of: — It shall be the duty of the person or persons doing a public warehouse or public elevator business under this article to receive for stor- age, handling or mixing, any grain that may be tendered to him or them in the usual manner with w^hich warehouses or elevators are accustomed to receive the same in the usual and ordinary course of business, and to not discriminate between persons desiring to avail themselves of warehouse or elevator facilities, and that the schedule of charges for such w^arehouse or elevator service shall be uniform, regardless of (juantities or lots so of- fered or received. Id. sec. 12. Grain to be inspected: — Receipts of grain by public ware- houses 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 the general stock of the warehouse; wdiich 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 same shall state upon its face that the grain is stored in a s])ecial bin giving the number of same and the quantity and grade of the grain so stored. Id. sec. 13. Grain — not to be delivered unless inspected: — No grain shall l)e delivered from or transferred through a public ware- house or public elevator constituted by this article unless it be inspected by a duly authorized state inspector. Id. sec. 14. Grain — not to be mixed by warehousemen or elevatormen : — public warehousemen and pul)lic elevatormen shall not mix any ;vJ- MISSOURI LAWS. i^rain of difTLTciU grades toijethcr, nor select or mix diffcreiU qualities of the same grade for the purpose of storing or deliv- ering the same, nor siiall they deli\er 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 or public elevator in his or their possession or custody, nor permit the same to be done by others with the view or result of jirofit to anyone; 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 jniblic warehouseman or pul)lic elevatorman. excejit on request of the owner thereof. Id. sec. 15. Grain — may be run through machinery — when: — When- ever it may be necessary, in order to preserve the condition of anv bin or lot of grain belonging to any person, stored in a l)ublic warehouse or public elevator to run said grain through machinery to air, clean or otherwise improve its condition, and it is so desired by the owner, this shall 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 state inspector. Id. sec. 16. 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 public warehouse or public elevator in which there is not sufficient room to accommodate or store it properly, or in cases where such public warehouse or public elevator is necessarily closed. Td. sec. 17. Grain — not to be received and mixed until inspected and graded: — Tn all places where there are legally appointed state inspectors of grain, no proprietor or manager of a public ware- house or public elevator 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 state inspector. Td. sec. 18. Warehouseman or elevatorman — not to enter into com- bination: — No warehouseman or elevatorman, agent or man- ager of a public warehouse or public elevator shall enter into anv combination, agreement or understanding with any railroad, steamboat transfer or other carrying corporation, or with any person or persons by which the property of any person is to MISSOURI LAWS. 523 be delivered to any public warehouse or public elevator for storage or other purpose, contrary to the direction of the owner, his agent or assignee. Id. sec. 19. Receipts to be issued, w^hen — to be numbered, how: — Upon all grain received into or handled by or stored in a public ware- house or public elevator, the same being accompanied with evi- dence that all charges which may be a lien upon such grain, including charges for inspection and weighing, have been paid, ihe warehousemen or elevatormen shall forward to the office of the chief inspector, for proper registration, warehouse or ele- vator receipts for grain received, and shall issue to the person entitled thereto a warehouse or elevator receipt therefor, sub- ject to the order of the owner or consignee, which receipt shall bear date corresponding with the receipt of the grain into the the warehouse or elevator for transferring, handling or storing 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 such warehouse or elevator for the purpose of being trans- ferred or handled or 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 endorsed by the person to whose order it was issued, and upon the pay- ment of charges accrued for storage, handling or transferring. .Ml warehouse or elevator receipts for grain issued from the same warehouse or elevator shall be consecutively numbered, and no two receipts bearing the same number shall be issued from the same warehouse or elevator during any one year, except in case of a lost or destroyed receipt, in which case the new receipt shall bear date and luimber as the original, and shall be plainly marked upon its face "duplicate." If the grain for which receipts are issued was received for (from) railroad cars, the number and initials of each car shall be stated in the receipt, with the amount each car contained ; if by boat, barge or other vessel, the name of such craft; if from wagons or other means it shall be so stated; if having been bulked from sacks, the manner of its receipt shall be stated upon the face (){ such receipt for grain so received. Id. sec. 20. Receipts — issuance of — general provisions for: — No public warehouse or ])ublic elevator receipt .shall be issued except upon actual delivery of grain into such warehouse or elevator from 524 MISSOURI LAWS. which it purports to he issued, and vvliich is to be represented hv the receipt ; nor shall any receipt be issued for greater quan- tity 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 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 such warehouse or elevator, 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 lialance 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 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 or elevatorman consents thereto. the original receipt shall be canceled the same as if the grain had been delivered from such warehouse or elevator; and ihc new receipts shall state 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 explaining the change, and all new receipts issued for old ones canceled, as herein provided, shall bear the same dates as those originally issued, as near as may be. Td. sec. 21. Receipt — not to limit or modify responsibility: — No ware- houseman or elevatorman under this article shall insert in any receipt 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. 22. Receipt — cancellation of — upon delivery of grain: — Upon delivery of grain from such warehouse or elevator upon any receipt, such receipt shall be handed to the chief inspector for proper cancellation by the registrar, plainly marked across its face with the word "canceled," with the name of the person canceling the same, and shall thereafter be void and shall not again be put in circulation, nor shall grain be delivered twice on the same receipt. Id. sec. 23. MISSOURI LAWS. 525 Receipts — transferable by indorsement: — Public warehouse or public elevator receipts for property received or handled by such warehouse or elevator created by this article as herein described shall be transferable for (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. 24. Receipts — fraudulent — penalty : — Any warehouseman or ele- vatorman of any public warehouse or public elevator created by this article, or employee of such warehouse or elevator, or owner or manager connected with same, or any other person who shall be guilty of issuing any warehouse or elevator receipt for any property not actually in such warehouse or elevator at the time of issuing such receipt, or who shall be guilty of issuing any warehouse or elevator 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 issue a dupli- cate receipt without marking the same "duplicate," or who shall forge the registrar's name to an original or duplicate warehouse or elevator receipt, or who '^hall remove any property from such warehouse or elevator 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 in addition to other penalties prescribed by this article, may be punished by imprisonment in the penitentiary for not less than two and not more than ten years. Id. sec. 25. Receipt — presentation of — grain to be delivered: — Upon the return of any warehouse or elevator receipt issued by per- sons in charge of a warehouse or elevator created by this article, and the demand for the delivery of property represented by such receipt, duly indorsed, if not presented by the original holder, accompanied by the tender of all proper charges upon the property represented, such property shall be immediately deliv- erable 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 ware- houseman or elevatormrm in the order in which such receipts are presented and demand for deliveries made. Id. sec. 26. 52t) MISSOURI LAWS. Rates — schedule of — to be published — by whom: — The manager of o\ cry public warehouse or public elevator created by this article, shall be required, within thirty days after the passage of this article, and during the first week of January of each year thereafter, to publish in one or more of the news- papers jnihlished in the vicinity in which such warehouse or elevator is situated, a schedule of rates for the transferrin?^ handling or storing of grain in his warehouse or elevator during the ensuing year, which rates shall not be increased during the year without the consent of the commissioner and such published rates, or any published reduction of them, shall apply to all grain received into or handled by such warehouse or elevator 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 or elevatorman for the transfer- ring, handling or storing of grain. The maximum charge for the storing, transferring or handling of grain, including the cost of receiving and delivering, shall be for the first ten days 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. 27. Grain — grade and amount of on hand to be posted — state- ments of grain received, etc., to be made daily — receipts issued and canceled of grains received and delivered: — The manager of every public warehouse or elevator 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 or elevator, in a conspicuous place, a statement of the amount of each kind and grade of grain in store in his ware- house or elevator, at the close of business on the previous Sat- urday, and shall also, on each Tuesday morning, render a simi- lar statement, made under oath before some officer authorized by law to administer oaths, by some one connected with such warehouse or elevator having personal knowledge of the facts to the commissioner. Tie shall also be required to furnish daily to said commissioner a correct statement of the amount of each kind of grain and grade of same received in store, transferred or handled in such warehouse or elevator on the previous day : also the amount of each kind of each grarlc of grain delivered or shipped by such warehouse or elevator during the previous dav, and what warehouse or elevator receipts have been can- MISSOURI LAWS. 527 celed upon which the grain has been delivered on such days, giving the number 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 trans-shipment, for which ware- house 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 daily report to the commissioner of receipts and deliveries of such unreceipted grain, if any, received for the account of owners of such warehouse or elevator, either directly or indirectly, with the amount, kind and grade of same. He shall also report daily to the commissioner what receipts, if any, have been canceled and new ones issued in their stead, as herein provided for. He shall also make such further statements to the commissioner regarding receipts issued or canceled as may be necessary for the keeping of a full and correct record of all receipts issued and canceled and of grain received and delivered. Id. sec. 28. Not responsible for loss or damage by fire — to give notice of grain damaged — may be sold at auction, when : — The owner of public warehouses or public elevators 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 same, and that such damage was the result of cause beyond their control; but unless such public notice be given that some portion of the grain in such warehouse or ele- vator is out of condition or becoming so, grain of equal quality to that received shall be delivered on all receipts presented. In case, however, any warehouseman or elevatorman shall dis- cover that any portion of the grain in his warehouse or elevator 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, if one is published in the city or town in which such warehouse or elevator is situated, and by posting a notice in the most ])ul)lic |)lace for such a pur- I)r)se 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 528 MISSOURI LAWS. Stored, and shall also stale in such notice the receipts outstand- ing upon which such grain will be delivered, giving the num- bers antl amounts and dates of each, which receipts shall be those of the oldest dates then in circulation or uncanceled, the grain represented by which has not previously been declared or receipted for as out of condition ; 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 receipts so declared to represent it, upon the request of the owner thereof. Nothing herein contained shall be held to relieve the said warehouseman or elevatorman 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 or elevator. In case the grain is de- clared out of condition, as herein provided for, and the same is not removed from store by the owner thereof within two months of the date of the notice of its being out of condition, it shall be lawful for the warehouseman or elevatorman where the grain is stored to sell the same at public auction, for account of said owner, by giving ten days' public notice by advertise- ment in a daily newspaper if there be one published in the city or town where such warehouse or elevator is located. All costs incurred in the sale of said grain, storage charges, etc., to be paid from the money derived from the sale of said grain, the balance, if any, to be paid to the owner. Id. sec. 29. Warehouseman or elevatorman, guilty of negligence — pun- ished, how: — Any warehouseman or elevatorman proved guilty of any act nf negligence the effect of which is to depreciate the condition of property stored, transferred or handled in the warehouse or elevator under his control, shall be held respon- sible upon the bond given for such warehouse or elevator, and in addition thereto, the license given for such warehouse or elevator shall be revoked by a proceeding as hereinbefore stated. Id. sec. 30. Commissioner to be furnished statement: — It shall be the duty of every owner, lessee or manager of every public ware- house or elevator in this state to furnish in writing, under oath, MISSOURI LAWS. 529 at such times as such commissioner shall require and prescribe, a statement concerning the condition and management of his business as such warehouseman or elevatorman. Id. sec. 31. Printed copies of this article to be posted, where: — All pro- prietors or managers of public warehouses or public elevators in this state shall keep posted at all times in a conspicuous place in their offices, and in each of their warehouses or elevators, a printed copy of this article. Id. sec. 32. Inspectors and owners may examine all property — scales may be examined and tested, when — by whom:— All persons owning property, or who may be interested in the same, stored or handled in any public warehouse or public elevator created by this article, and all duly authorized state inspectors of such property, shall at all times during ordinary business hours be at full liberty to examine any and all property in any public warehouse or elevator in this state, and all proper facilities shall be extended to such persons by the warehouseman or ele- vatorman, his agents and servants, for an examination; and all parts of public warehouses or public elevators shall be free for the inspection and examination of any person interested in property therein, or by any authorized state inspection of such property. All scales used for the weighing of property in public warehouses or public elevators shall be subject to exami- nation and test by any duly authorized state scale inspector, 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 state scale inspector. Id. sec. 33. Violation — penalty: — A violation of any of the preceding l^rovisions of this article, except in cases covered by sections 11, 25 and 30 by any warehouseman or elevatorman, owner, lessee, manager or employee of public warehouses or elevators created by this act is declared a misdemeanor, and upon con- viction 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 mis- demeanor. Id. sec. 34. Warehouseman or elevatorman — prosecution of — duty of prosecuting attorney: — In all criminal jjio^cculions against 34 530 MISSOURI LAWS. a public warehouseman or pul)lic elevatorman for the violation of any of tlic provisions of this article, it shall be the duty of \hv prosecutiui; attorney of the county in which such prosecu- tion is brought, or if in the city of St. Louis, the duty of the prosecuting attorney of said city, to presecute the same to a final issue in the name and on behalf of the people of the state of Missouri. Id. sec. 35. Warehouseman or elevatorman — suit may be brought aginst — how — when: — If any warehouseman or elevatorman shall be guilty of a violation of any of the provisions of this article, to tlie injury 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 warehouseman or elevator- man in the name of the people of the state of Missouri, to the use of such person. Id. sec. 36. 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 advice and imme- diate direction of the commissioner. Id. sec. 37. Commissioner to appoint deputy chief inspector and assist- ants: — The commissioner shall appoint such suitable persons in sufficient numbers as he may deem fjualified for 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 warehouse, and also such other employees as may be necessary to properly conduct the business of the grain inspec- tion and weighing departments. Id. sec. 38. Chief inspector — oath and bond of: — 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 prescribed by the commissioner. He shall execute a bond to the people of the state of Missouri in the penal sum of twenty thousand dollars, with sureties to be ap- proved by the commissioner, 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 laws and the rules and regulations adopted by the commissioner. Id. sec. 39. MISSOURI LAWS. 531 Deputy chief inspector and assistants — duties — report of — oath — bond — may be sued: — The deputy chief inspector and all assistant inspectors appointed under tliis article shall be under the supervision of the chief inspector, to whom they shall re- port 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 ofifice of said commissioner. 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, the dejuitv chief inspector or assistant inspectors. Id. sec. 40. Commissioner to make rules and regulations — Chief inspec- tor, deputy and assistants to be governed by same — fees, paid where:— The chief inspector of grain, the deputy chief in- spector, assistant inspectors and other employees in connection therewith, shall be governed in their respective duties by such rules and regulations as may be prescribed by the commissioner, and the said commissioner shall have full power to make all proper rules and regulations for the inspection of grain, not inconsistent with this article, to include the fixing of charge? for the inspection of grain and other duties of said chief in- spector, deputy chief inspector and assistant inspectors, and to make rules for the collection of same, which charges shall be regulated in such manner as will, in the judgment of the com- missioner produce sufficient revenue to meet the necessary cx|)enses of the service of inspection and no more. .Ml fees collected '^hall be i)aid monthly into the state treasury and be- come a part of the general revenue fund of the state, the earn- ings of each month to be paid into the said treasury on or before the 20th flay of the month following the one during which such fees were earned. Id. sec. 41. Malfeasance of inspectors— penalty :—.\ny duly authorized chief insperlfjr. dejtuty 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 532 MISSOURI LAWS. improperly, or who shall accept any money or other valuable consi(lcratit)n. direcll}- or indirectly, for any nej^lect of duty as such chief inspector. de])uty chief inspector or assistant in- spector, or any person who shall improperly influence any chief inspector, deinity chief inspector or assistant inspector of grain under this article in the performance of his duties as such in- spector, shall he deemed guilty of a misdemeanor, and on convic- tion thereof shall he 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 tine and imprisonment, in the discretion of the court. Id. sec. 43. Imposters — punished, how: — The inspection or grading of grain in this state, whether into or out of warehouses, ele- vators, 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 by the commissioner, sworn and have given bond under this article, and any person or persons who shall assume to act as an in- spector of grain who has not been duly appointed by the com- missioner, sworn and given bond under this article, shall be held to be an imposter, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or imprisonment in the county jail, and if in the city of St. Louis, in the city jail of said city, 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 ofifense so com- mitted. Id. sec. 44. Complaint against employees of commissioner — how made — penalty: — Upon com])laint in writing of any person to the said commissioner, supported by satisfactory proof, that any person appointed or employed by said commissioner, under the provisions of this article, has violated any of the rules pre- scribed for his government, or has been guilty of any improper official act, or has been found incompetent for the duties of his position, 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 MISSOURI LAWS. 533 of the same authority by which they were appointed or em- ployed. Id. sec. 45. Committee — appeals may be made to for arbitration: — In all matters involving doubt on the part of the chief inspector, the deputy chief inspector, or any assistant inspector, as to the proper inspection into or out of any warehouse or elevator created by this article, or in case any owner, consignee or ship- per of grain or any warehouse or elevator 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 may be made to the committee herein- after pro\ided for, who shall at once convene, and whose de- cision, after a careful inquiry into the (|uestions at issue, shall be final. Id. sec. 46. Arbitration committee — appointment of: — The commis- sioner shall, as soon after the passage of this article as is prac- ticable, appoint a committee for the adjustment of differences between inspectors and warehousemen and elevatormen, owners or representatives of owners of grain, arising 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 eJich city or town where public warehouses or public ele- vators under this article are located, said committee to be known as the arbitration committee of the warehouse commissioner. Id. sec. 47. Commissioner to make rules for arbitrators: — The commis- sioner shall make equitable and legal rules governing said com- mittees' procedure, in the arbitration, the manner and amount of compensation, the method of appointment and terms of serv- ice. Id. sec. 48. Commissioner to establish grades of grain: — The commis- sioner shall establish a i)roi)cr number and standard of grades for the inspection of grain, with due regard to the prevailing usage of the markets of this state, and the interests of both producers and dealers, and as near as may be to conform with standards of grade adoj)tcd by leading markets of the United .State';: Provided, no modification or changes of grade shall be made, or any new ones establi.shed, without iniblic notice being given of such changes at least thirty days prior to the date that such changes shall take effect, by officially notifying 534 MISSOURI LAWS. the secretaries of all boards of trade in this state, and such secre- taries are required to post the notilication of such change or changes on the lioor of the exchange; and provided further, that no mixture of old or new grades, even though designated by the same naiue, or distinction, shall be permitted while in store, ex- cept as in this article provided. Id. sec. 49. Commissioner to report to governor: — The commissioner shall, on or before the hrst day of January of each year, make a report to the governor of his 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 him may ap- pear pertinent. Id. sec. 50. Commissioner to examine and visit warehouses and ele- vators, when — how often: — -Said commissioner shall examine into conditions and management and all matters concerning the business of warehouses and elevators under this article in this state, so far as the same may pertain to the relations of such warehouses or elevators to the public, and to the security and convenience of persons doing business therewith, and to ascer- tain whether the officers, directors, managers, lessees, agents and employees comply with the laws of this state now in force, or to be in force concerning such warehouses or elevators. Whenever it shall come to his knowledge, or he shall have rea- son to believe that any law governing the public warehouses or elevators of this state under this article is being or has been violated, he shall cause to be prosecuted or prosecute all persons guilty of such violation. To enable said commissioner to effi- ciently perform his duties under this article it is hereby made his duty, at least once in six months, to visit each warehouse or elevator in this state and personally inquire into the manage- ment of such warehouse or elevator Inisiness. Id. sec. 51. Commissioner may examine all books, etc., and owners and employees: — The property, books, records, accounts, papers and proceedings of all such warehousemen or elevatormen. as are contemplated by this article shall at all times during business hours be subject to the examination and inspection of the com- missioner, and he .shall have power to examine, under oath, any owner, manager, lessee, agent or employee of a public ware- house, or public elevator, and any other person, concerning the MISSOURI LAWS. ^^ condition and management of such warehouse or elevator. Id. sec. 52. Commissioner may subpoena witnesses: — In making any examination as contemplated by this article, or for the purpose of obtaining information as contemplated by this article, said commissioner shall have the 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 commis- sioner, to issue an attachment for such witness and compel such witness to attend before the commissioner and give his testi- mony upon such matters as shall be lawfully required by such commissioner; 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. 53. Failure to obey subpoena — penalty : — Any person who shall willfully neglect or refuse to ol)ey the process of subpoena is- sued by said commissioner, and appear and testify as therein required, shall be guilty of a misdemeanor, and shall be liable to arraignment and trial in any court of competent 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 by both such fine and imprisonment in the discretion of the court before which such conviction shall be had. Id. <;ec. 54. Attorney-general and prosecuting attorney — duty of: — It shall be the duty of the attorney-general and the state's attorney in every county, if in cases brought in St. Louis, the state's attorney for said city, or on the request of said commissioner to institute and prosecute any and all suits or j^roceedings which they or either of them shall be directed by said commissioner to institute and prosecute for a violation of this article or any law of this slate concerning public warehouses or public ele- vators as constituted by this article, or the officers, employees, owners, operators or agents of such warehouses or elevators. Id. sec. 55. Prosecutions to be in name of state: .Ml i)r(isccutions under this article shall be in the name of the people of the state 536 MISSOIKI LAWS. (if Missouri, ami all niDiicvs arisiiis; therefrom shall be paid into the state treasury by the sheriff or other officer collectinj=: the same : Provided, this article shall not be construed so as to prevent any person entitled to receive a percentage of fines imposed and collected, as a reward for information furnished as hereinbefore stated, which percentage shall be paid to such person bv the officer collecting such fine. Id. sec. 56. Common law remedy — Persons not to be deprived of:— Nothing in this article shall deprive any person of any common law remedy now existing. Id. sec. S7. Prosecution for damages — rights of injured person not af- fected: — 'Phis article shall not be construed so as to waive or afl:ect the right of any person injured by the violation of any law in regard to warehouses or elevators from prosecuting for liis private damages in any manner allowed by law. Id. sec. 58. Weighmasters, appointment of — duties of — to have control of scales: — The commissioner shall appoint suitable persons to act as weighmasters at such places in this state where state grain inspection and weighing may be established in conformity with the provisions of this article; said weighmasters shall at the places aforesaid, supervise the weighing of all grain which may be subject to inspection and weighing, and at all warehouses or elevators where there are no such scales as hopper scales, there shall be provided in such case by the warehouseman or elevatorman or railroad company, upon the order of the com- missioner, track or other proper scales upon which the gross, tare and net weight of each car, wagoii or other package shall be taken, but at all warehouses or elevators having hopper scales the net weight of grain contained in each car, wagon or other package shall be taken on such scales and certificate of weight of such weighmasters in the discharge of their afore- said duties shall be prima facie the basis of settlement between the buyer and seller. And such state weighmaster shall have the entire control of such scales. Id. sec. 59. Fees — to be fixed by the commissioner — to whom paid — by whom paid: — The commissioner shall fix the fees to be paid for the weighing of grain, which fees shall be paid by the ware- houseman or elevatorman, l)ut on grain not going into such warehouse or elevator the fee shall 1)C ])aid by the consignee, and may be added to the charges for storing, transferring. MISSOURI LAWS. 537 handling, mixing or commission, and the said commissioner shall adopt such rules and regulations for the weighing of grain as he shall deem proper. Id. sec. 60. Scales to be furnished — by whom — to be located, where — grain in store to be weighed — notice to be given — report: — It shall be the duty of the person or persons doing a public ware- house or public elevator business under this article to ])rovide and maintain suitable scales upon which all grain tendered to him or them for storage, transferring, handling or mixing shall lie weighed under the supervision of a state weighmaster. as provided for in this article. Said scales shall be located at the most convenient point upon the track of some railroad running into or adjoining such warehouse or elevator. It shall further l)e the duty of the person or persons doing a public warehouse or public elevator business under this article, at some convenient time, at least once a year or when the commissioner orders it. after giving fifteen days' notice, and under the supervision of an authorized state weighmaster and inspector of the state grain inspection department, to weigh and inspect all grain at such time or times then in such warehouse or elevator, and to report to the warehouse registrar the result of such weighing and the actual amount of each kind and grade in such warehouse or elevator. During such time as such weighing is going on. the receiving and shipping of grain into and from such warehouse or elevator shall be discontinued until such general weighing has been completed. Id. Sec. 61. Railroads to furnish scales to weigh grain handled by them — scales to be located where: — At all terminal or other points within this state wherever state grain ins])ection may be estab- lished, it shall be the duty of all railroads to provide, on the or- der of the commissioner, suitable wagon scales in their unloading yards, upon which all grain handled by them subject to insjiec- tion and weighing may be weighed as required by this article. Said scales shall be located at places to be designated by the commissioner and it shall be the duty of said commissioner to see that the provisions of this article are strictly enforced. Id. Sec. 62. Weight certificates not to be issued except by bonded state weigher — false or untrue certificates given out — penalties: — It shall be unlawful for any person, corporation or association 538 MISSOURI LAWS. Other than a duly authorized and bonded state weigher to issue any weiglit eertilioate or to issue or sign any paper or ticket purporting to be the weight of any car, wagon, sack or other package of grain weighed at any warehouse or elevator in this state where duly appointed and qualified state weighers are sta- tioned anil in control of the scales under the provisions of this article, or to make any charge for such weighing, or purported weighing, or weight certificates, or tickets or purported weight certificates or tickets. And any person, corporation or officer, agent or servant of such corporation who shall do any of the acts tleclared by this section to be unlawful, shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than fwe hundred dollars, nor more than one 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 months nor more than twelve months, or by both such fine and imprison- ment. And any weighmaster w^ho shall knowingly falsely weigh any grain or shall knowingly give any false or untrue certificates as to the weight of grain, or who shall knowingly violate any of the provisions of this article, shall be deemed guilty of a misde- meanor, and shall be punished by a fine of not less than five hun- dred dollars nor more than one thousand dollars, or shall be imprisoned in the county jail, or if in the city of St. Louis, in the jail of said city, not less than six months nor more than twelve months, or by both such fine and imprisonment. Id. vSec. 63. Weighmasters — bond of — compensation : — The weigh- masters provided for in this article shall each give a bond in the sum of five thousand dollars, conditioned for the faithful discharge of their duties and shall recive such compensation as the commissioner shall determine. Id. Sec. 64. Emergency: — There being no adequate provisions of law for state inspection and weighing of grain as provided for herein, and this act being deemed of immediate importance, an emer- gency exists within the meaning of the Constitution, therefore, this act shall take effect and be in force from and after the fifteenth day of April, 1913. Id. Sec. 6.S. Inspection of tobacco — Term of office and qualifications of inspector: — There is hereby established in the city of St. Louis. Missouri, a tobacco inspection. The governor shall ap- MISSOURI LAWS. 539 point 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 otherwise than as tobacco inspector. Rev. Stats. Mo.. 1909, sec. 6852. Duties of inspector. — No inspector shall either buy or sell any tobacco, except of his own raising, but shall auctioneer and cry off all inspected and leaf tobacco, for the owner or agent, sold at the warehouse. Id. sec. 6853. 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 faith- ful performance 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. 6854. 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 re- spective warehouses during all business hours of each regular secular day, whenever called on so to do. Id. sec. 6855. Penalty for failing to attend: — Any inspector failing to attend when so requested shall forfeit 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. 6856. Charges and fees — By whom paid: — The purchaser and seller shall each pay one half of all warehouse charges, including inspection fees, on all tobacco sold, but when the sale of any tobacco oflfered is rejected, then the owner or agent shall pay the whole of the warehouse charges, including the inspection fees. Id. sec. 6857. 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 and selling leaf 540 MISSOTKI l.WVS. tobacco prized in liogshoads. shall have such tobacco inspected before sale, bv the state insi)ector appointed in and for the city of St. Louis, and by no other. /(/. sec. 0858. Oath of inspector: — The oath of the inspector shall be in the form following: 1, . do solemnly swear that I will care- fully 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 haye been taken from the hogshead for which the receipt to be taken was given, and that I will not, directly or indirectly, be engaged in the manufacturing, 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 permitted by law, but that I will in all things well and faithfully discharge 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. 6859. 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 subject the party, upon conviction, to the penalties of perjury. Id. sec. 6860. Hogsheads to be weighed 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. 6861. 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 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. 6862. Tare and net weight: — The tare, with the addition of ten pounds for weight of sample, shall be deducted from the gross MISSOURI LAWS. 541 weight ; the remainder shall be the net weight, and the inspector shall in all cases deliver to the owner or the purchaser of any hogshead of tobacco the samples which were drawn from the same. AMienever any hogshead of tobacco shall have been weighed under the superintendence 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. 6863. Samples to be done 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 Inspection." Id. sec. 6864. 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 tobacco (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 by the inspector, certify ui)on the face of the same that said tobacco is on storage and deliverable only on return of said certificate to the holder thereof. Id. sec. 6865. Hogshead to be restored to good shipping order: — It shall be the duty of the inspector to attend and see that after the un- casing 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 ojjened and inspected \)v put back as near as possible to where it bclongcfl before the same was uncased. /(/. sec. 6866. 5^2 MISSOURI LAWS. Inspector's fees: — For every hogshead of tobacco inspected in the city of St. Louis, (ho inspector shall receive twenty-five cents inspection fee, which may ho collected with the other ware- houso fees. Id. sec. 6867. Penalty for unauthorized inspection: — If any person other than the inspector shall inspect any hogshead of tobacco within the city of St. Louis, or if any person occupying any store, or warehouse within the city of St. Louis shall suflfer or permit any person other than the inspector to inspect any hogshead of tobacco upon the premises occupied by him, such person inspect- ing the tobacco, and such person or persons suffering or per- mitting such illegal inspection, shall each be fined in the sum of one hundred dollars for every hogshead of tobacco so inspected to the use of the state, to be recovered by indictment. Id. sec. Scales and hands, by whom furnished: — No inspector shall be required to furnish scales or hands to strip or break tobacco, Imt 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. 6869. 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 being falsely or fraudulently packed, it shall be his duty to wiile 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 to- bacco for sale. Id. sec. 6870. Appointment and qualification of deputies: — The inspector is hereby empowered, if necessary to the convenient dispatch of his respective duties, to appoint one or more deputies at his own cost, for whom he shall be accountable, which deputies are here- by empowered to perform the duties of inspection, and shall be liable to the same penalties as the inspector ; said deputies shall take the same oath as prescribed for the inspector, and for whose official conduct the said inspector shall be liable upon his official bond. Jd. sec. 6871. Inspectors and warehousekeepers not responsible for natural loss in weights: — Section 7609 shall ntjt be construed so as to hold the inspector and warehousekeeper, or either of them, re- MISSOURI LAWS. 543 sponsible 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. Id. sec. 6872. 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. 6873. Certificates of inspection negotiable: — The certificate of a hogshead of tobacco issued by the inspector of tobacco, and countersigned by the keeper or superintendent of the warehouse, shall be negotiable, and the warehouse, 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 holder of said certificate, loss or damage from elemental causes alone excepted. Id. sec. 6874. Appointment 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 inspection, when twenty- five freeholders shall petition the governor for the appointment of a tobacco inspector for such local inspection : Provided, said in- spector so appointed by the governor shall be subject to all the provisions of this article relating 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 filing his bond. Id. sec. 6875. Limit of warehouse fees: — The warehouse fees shall not ex- ceed three dollars for each hogshead, including inspection fee at any one offer. Id. sec. 6876. Remedy for non-payment of rent for safes: — Any corpora- tion which has been authorized, or may hereafter be authorized, to own or control a safety vault and rent the boxes therein, may, if the amount due for the use of any .safe or box in the vault of such corporation shall not have been paid for two years, at the expiration thereof, cause to be sent to the person in whose 544 MlSSDL'Kl LAWS. name siu-li safe ov box stands on its hooks, a notice, in writing, in a seeurely eloseil postpaid reg^istered letter, directed to such ])erson at liis postoriice address as recorded upon the hooks of the corjioration. notifying sucli person that if the amount then due for the use of .such safe or l)ox is not paid within sixty (hiys from the (kite of such notice, the corporation wih then cause such safe or hox to he opened, in tlie presence oi its president, or \ ice-president, or secretary, or treasurer, and of a notary puhhc not an officer or in the employ of the corporation, and the con- tents thereof, if any, to he sealed up l)y such notary puhlic in a package, upon which such notary ])uhlic shall distinctly mark the name and address of the person in whose name such hox or safe stands upon the hooks of the corporation, and the estimated value thereof ; and the package so sealed and addressed, when marked for identification hy such notary puhlic. will he placed hy such notary puhlic in one of the general safes or hoxes of the corporation, and retained hy the corporation, suhject to the payment of all rent that may he un])aid, and of all expenses in- curred in opening the safe or box, and also of a reasonable com- pensation for the safe-keeping of the contents after their re- moval from the safe or box. Id. sec. 1128. Failure to properly account, penalty: — If any warehouse- man, storage, forwarding or connnission merchant, or any other person selling on commission or for a percentage on sales made by him, or any person receiving goods on condition that he is to pay a certain price or value to the owner or shipper when such goods are sold, or if the agent, clerk or servant of any such person shall convert to his own use any produce, cattle, hogs, cotton, flour or other property of any description what- soever, or the proceeds or avails thereof, without the consent of the owner thereof, or shall fail to pay over the proceeds or avail thereof, less his proper charges, on the demand of the person entitled thereto, or his duly authorized agent, he shall be adjudged guilty of a misdemeanor, and shall, on conviction, be punished by a fine not exceeding one thousand dollars nor less than one hundred dollars or confined in the county jail or work- house not longer than one year nor less than sixty days, or shall be punished by both such fine and imprisonment, and shall be liable to the person injured in double the value of the property or money so converted. Id. sec. 4583. MISSOURI LAWS. 545 Common carriers may retain goods until charges are paid: — When any goods, merchandise or other property shall have been received by any railroad or express company, or other common carrier, commission merchant or warehouseman, and shall not be received by the owner, consignee, or other authorized 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 reasonal)le charges be paid. /(/. sec. 8274. Property unclaimed to be sold, how: — If no person calls for said goods, merchandise or other property, within sixty days from the receipt thereof, and pay freight and charges thereon, it shall be lawful for such carrier, commission merchant or ware- houseman, 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, when known, and by advertisement in a daily paper, or if in a weekly paper, four 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 sixty days. Id. sec. 8275. Money not to be loaned to exceed what amount, etc: — No incorporated or private bank in this stale shall loan its money to any individual, corporation or company, directly or indirectly, or permit any individual, cor])oration or company to become at any time indebted or liable to it in a sum exceeding twenty- five per cent of its capital stock actually i)ai(l in, or permit a line of loans or credits to any greater amount to any individual or corporation ; a permanent surj)lus. the setting apart of which shall have been certified to the bank commissioner, 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 pur- poses of this section : Provided, said surplus is equal to or in ex- cess of fifty per cent of the capital stock of said bank: Provided, that the provisions in this section shall not be so construed as in anywise to interfere with the rules and regulations of any clear- ing association in this state in reference to the daily balances 35 546 MlSSOL'Kl LAWS. between banks: Provided, lliat tliis 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 exchange 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 ele- vators and warehouses under the following conditions : First, that the actual market value of the property held in store and covered by such receipts shall at all times exceed by 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 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 ad- mitted, and all such policies shall be made payable in case of loss to the bank or holder of the warehouse receipts. Id. sec. 1110. Shipments of grain in bulk: — 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 and directed : Provided, such person, ware- house 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 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 requirements of this section shall be liable to all persons injured thereby for all damages which they may sustain on that account, 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 corpora- tion to comply with the requirements of this section, such cor- poration 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 MISSOURI LAWS. 547 people of this state, a sum of not less than one thousand nor more than five thousand 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 railroad 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 lawful for any person interested to apply to a court of com- petent jurisdiction, 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 cor- poration for any and every violation shall, together with interest, be fully satisfied. Id. sec. 3153. Consignments 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 unloading of such property from the cars in which it is transported. Notice of any change in consignment may be served by the consignee or any agent of the railroad corporation having the property in posses- sion, 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 while the same remains uncancelled, such prop- erty is delivered in any way different from such altered or changed consignment, such railroad corporation 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 competent jurisdiction, and no extra charge shall be permitted by the corporation having the custody of such ])roperty in consequence of such (-hangc of consignment. Id. sec. 3154. Time allowed for removing grain from cars: — Any con- signee or person entitled to receive the delivery of grain traii:^- I)orted in bulk by any railroad shall have forty-eight hours, free of expense, after actual notice of arrival by the corporation to the consignee, in which to remove tlic same from the cars of such railroad corporation if he shall desire to receive it from 548 MISSOURI LAWS. the cars on the track, which forty-eight hours shall be held to embrace such time as the car containing such property is placed and kept by such corporation in a convenient and proper place for unloading. And it shall not be held to have been placed in a proper place for unloading unless it can be reached by the con- signee or person entitled to receive it, with teams or other suita- ble means for removing the property from the car, and reason- ablv convenient to the depot of such railroad corporation at which it is accustomed to receive and unload merchandise con- signed to that station or place. Nothing herein contained, how- ever shall be held to authorize the changing of any consign- ment of grain except as to the place at which it is to be delivered or unloaded, nor shall such change of consignment in any degree aflfect the ownership or control of property in any other way. Id. Sec. 3155. No discrimination 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 ship any grain over its road, shall receive and transport such grain, in bulk 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 distinc- tion, discrimination or favor between one shipper and another, and without distinction or discrimination as to the manner in which such grain is ofifered 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 received by it for transportation, such corpora- tion shall carefully 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 delivery, the full amount of such grain, without any deduction for leakage, shrinkage or other loss in 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 delivery, the corporation so failing to deliver the full amount of such grain shall pay to the person entitled thereto the full market value of MISSOURI nECTSTONS. 549 any such grain not delivered at the time and place when and where the same should have been delivered. Id. sec. 3156. Game commissioner may examine packages — penalty for refusal to allow examination: — All birds, animals or fish seized by the said game and fish commissioner shall be donated to some charitable institution in the county where such seizure was made. It is hereby made the duty of every warehouse, cold storage plant, merchant or common carrier, agent, servant or employee thereof, to permit the game and fish commissioner to examine any package in the possession of said warehouse, cold storage plant, merchant or common carrier, or agent, servant or employe thereof, which the said game and fish commissioner shall sus])ect or have reason to believe contains fish, birds or game protected by the laws of the state, and not entitled under such law to be transported or had in possession, or when the said game and fish commissioner shall suspect or have reason to be- lieve that the said package is falsely labeled. Any person, firm or corporation refusing the game and fish commissioner, or any officer charged with the enforcement of the game and fish laws, permission to examine or open any such package or impede such action by the game and fish commissioner, shall be punished by a fine of not less than fifty dollars nor more than one hun- dred and fifty dollars. Said game and fish commissioner shall not be liable for damages on account of any search, examina- tion or seizure marie in accordance with the provisions of this article. Id. Sec. 6364 . Note: For other provisions of the Fish and Game Law see C.h. 49, Articles 1 and 2, heing sections 6506 to 6591, Rev. Stats. Mo., 1909. DECISIONS AFFECTING W./^RFHOUSEMEN A. Warehouse — Definition: — There is no technical meaning to the word warehouse difi'erent from its ordinary significance of storehouse. The State v. Watson. 141 Mo. 338; The State v. S Prague, 149 Mo. 409. Bailment — Storage in a different place — Bailee responsible: — When a bailee is intrusted with goods for a particular purpose or to keep in a particular place he is responsible for loss caused by using them for a different jjurpose or keeping them in a different place. Kennedy v. Portman et al., 97 Mo. App. 253, 255. ."iSO MISSOIRI nF.CISTONS. BallDiciit ami sale — Option to pay for in money or other prop- ert\. effect thereof: — Plaintiff deposited wlicat in tlie defendant's warehouse ; under the agreement between them, defendant was obliged to deli\er a eertain quantity of flour or of bran, pro- jiortionai to the amount of wheat deposited. Before demand made, warehouse and contents were destroyed by fire. The court held that in view of the fact that the wheat of the various de- positors was mingled with other wheat deposited, and that all of the 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 a sale, and was wholly incon- sistent 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 Hurd 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 rea- sonable care of property and are only answerable for losses oc- casioned by default and neglect. Gashweiler v. Wabash, St. Louis & Pacific R. R. Co., 83 Mo. 112; Holtzclav et al. v. Duff, 27 Mo. 392. Same — What constitutes: — A warehouseman is a bailee, and the contract being for the return of specific articles stored upon demand of plaintiff, is one of bailment. The obligation of the warehouseman bailee is to exercise ordinary care to protect property entrusted to him ; that is, to use such care and diligence looking to its safety as ordinarily prudent persons in that busi- ness are accustomed to exercise toward such property or in the care of their own property under similar circumstances. Berger V. St. Louis Storage and Commission Co., 136 Mo. App. 36, 38. Same — What constitutes — When a question for the jury and when for the court: — What constitutes a requisite diligence and care to be exercised by a warehouseman is always one to be de- termined by the jury, in view of the surrounding circumstances, when there is substantial evidence upon which to submit to them MISSOURI DECISIONS. 551 such an issue ; but in the absence of such evidence, it becomes a question of law to be determined by the court. American Brew- ing Assn. V. Talbot et al., 141 Mo. 674. Conversion — WJiat constitutes: — The action of one in with- holding property from the real owner thereof, when demand has been made upon him for it, is in law a conversion thereof. Fos- ter Woolen Co. v. IVoolman, 87 Mo. App. 658; Rembaugh v. Phipps, 75 Mo. 422. G. Government bonded warehouse — Vendor's lien — Non-negoti- able receipt: — The plaintiff sued the defendant for the conver- sion of a number of barrels of whiskey, to which plaintiff alleged he was entitled, pursuant to the receipt issued therefor, by one who had purchased the whiskey from the defendant. It ap- peared 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 subsequent- ly pledged the whiskey with the plaintiff, for the payment of a loan and, as security therefor, delivered to him a non-negoti- able warehouse receipt. From the above facts, the court held that the warehouse receipt in question only had the effect of transferring the title of the whiskey to the plaintiff, as secur- ity for his debt, and was not for value in a sense that would ex- tinguish 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 — Na^ lure of this lien considered: — Where whiskey was placed in a government bonded warehouse, it was held that the vendor's lien was not destroyed; that a delivery to such warehouse was not a delivery to the vendee so as to impair the lien of the ven- dor. Tlie existence of the vendor's lien presupposes that the title to the goods has passed. It is in no sense a right to rescis- sion, but. on the contrary proceeds in affirmation of the contract of sale. It is in the nature of a pledge raised or created by law upon the happening of the insolvency of the vendee, to secure ^^ti- MISSOURI DECISIONS. the unpaid purchase of money to the vendor. Conrad v. Fisher, 37 Mo. App. 352. H. Storage charges — ()// basis of qtiantmn Jiicruit where goods destroyed :— The defendant warehouseman undertook to store for a certain period a quantity of apples, also to unload, repack, load and ice the cars to ])rotect the a])ples in travel, as well as to insure the apples for the benelit of the owners. For this he was to receive fifty cents per barrel. While in the warehouse and sometime before the apples were to be delivered, they were destroyed by fire. T^efendant collected insurance for the full value and paid the owners, deducting, however, his charges of said fifty cents j^er barrel. Action by the owners against the warehouseman for the difference (i.e., the amount retained by him) Held: That no essential element was lacking of an implied promise to compensate the defendant quantum meruit and the cause remained for trial to determine the reasonable value of the service rendered by the defendant warehouseman. Clough v. Stillwell Meat Co., 112 Mo. App. 177. Warehouseman's lien — Goods stored by sheriff — Warehouse- man protected — Lien hiiihly favored by lazv: — The sheriff at- tached goods, in an action against the owner thereof, and stored them with the defendant warehouseman for safe-keeping, ^fhe judgment against the owner was discharged and the attachment released. The owner thereupon demanded the goods of the de- fendant, who refused to surrender the same unless his storage charges were paid, he claiming to have a lien against the goods therefor. The court licld that the defendant's lien remained after the attachment was dissolved, and was as binding and as effectual as if the property had been stored by the plaintiff himself, in- stead of by the constable, 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 re- ceiver; in each instance the goods are in the 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, MISSOURI DECISIONS. ^^^ Same — Subordinate to right of mortgagee under chattel mort- gage: — Where a mortgagor of goods, without the consent of the mortgagee, 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 — Exces- sive demand: — The mere fact that the demand, made by the bailee of property, 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 which was justly due. Muench v. Valley National Bank, 11 Mo. App. 144; Montieth v. Great Western Printing Co., 16 Mo. App. 450. Storage charges — May only sell sufficient to cover same — When — Conversion — Where property to be sold consists of a large number of separate articles, which may be sold separately, and where some part, materially less than all, can clearly be sold for enough to pay all charges and costs, it is the duty of the warehouseman to sell no more than is reasonably necessary for that purpose. If the warehouseman wilfully sells more than is reasonably necessary he is guilty of a conversion of all thus sold. If he unnecessarily sells all of a large amount of valuable and separable i)roperty, when clearly less would have brought his claim he is guilty of a conversion of all. Ward v. Morr Trans- fer and Storage Co., 119 Mo. App. 83. L. Replevin — Bailee may maintain: — A person in possession of goods as bailee may maintain an action of replevin against all [)ersons excejit the true owner, and even against him if he has a lien for services, advances, and the like, upon them. Snozvden V. Kessler, 76 Mo. App. 581. Same — When property is and when it is not, in the custody of the law: — As to jjarties to a replevin suit, or their grantees or privies, the property is in custodia legis pending the determina- tion of that suit, and cannot be sold by the party in possession or levied upon by either party, or their pri\ics, but as to third persons the i)endency of the roplexin suit dnrs doI pl.uc the jjrop- crty in custodia Icgis and does not bar llicir rigiu to proceed 554 MlSS(»rKI DKCISIONS. ajjainst it hv proix-r judicial process. Molir v. Langan, 162 Mo. 474. 492. 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 sustains by the wrongful sale on account (^f 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 keep- ing his undertaking. Schaaf, Admr., v. Fries, 90 Mo. App. 111. N. Misdelivery — When warehouseman not liable: — A warehouse- man is not responsible for the delivery of property intrusted to him to one who presents a proper bill of lading therefor, the warehouseman making proper inquiry, such as would be satis- factory to a prudent business man. Bxish v. St. Louis, K. C. & N. Ry. Co., 3 Mo. App. 62. Same — When warehouseman liable: — The general rule of law that a bailee (in this case a warehouseman) having received the goods from the bailor cannot question his right to demand their return nor set up a paramount title in any one else, and no de- mand having been made upon him by the real owner, is not liable for a conversion of the goods in case he delivers them to the bailor, will not protect a bailee who, having notice of the rights of the real owner, yet aids and abets the bailor in wrongfully con- verting the goods. In this case the warehouseman had been a wit- ness in a previous replevin suit, and consequently knew that other parties claimed title to the goods. Mohr v. Langan, 162 Mo. 474, 494. Same — Estoppel: — Action against warehouseman for value of certain goods belonging to plaintiff. Plaintiff, whose name was H. C. S., stored certain household goods with defendant and re- ceived a receipt made out to "S. C. S." Plaintiff's wife, whose name was "S. C. S.," upon her presentation of the receipt re- ceived the goods and took them to a second-hand dealer who sold them. There was conflicting evidence as to the statements and conduct of plaintiff and defendant. The jury returned a verdict for plaintiff. Held: That it was for the jury to determine whether or not the conduct of plaintiff was .such as to induce de- MISSOURI DECISIONS. 555 fendants and the second hand dealer to believe that plaintiff would not seek to recover the goods or their value and that, act- ing upon such understanding the second dealer sold the goods. The court also held that the offer of plaintiff to buy the goods from the second hand dealer did not of itself estop him from his remedy against defendants. That plaintiff was not bound to pursue the property in the hands of the second hand dealer. Defendants urged that as the warehouse receipt was made out in the name of S. C. S., plaintiff's wife, they were justified in de- livering the property to her. The court held no effort was made to show that defendants were induced to deliver the goods to her for that reason and that it had not been questioned that plaintiff was the owner and had deposited the goods with defendant. Schroeder v. Reinhardt Bros., 123 Mo. App. 582. Act of God — Lost by flood — Unprecedented rise in river — Bur- den 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 defend- ants thereupon removed the goods stored to the upper portions thereof. Subsequently the warehouse collapsed. It was held that the warehouseman was not liable ; that such result was from inevitable accident, or 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 bailor to establish that the loss was due to the bailee's negli- gence. American Brewing Assn. v. Tolbot et al., 141 Mo. 674. See also Fuchs v. St. Louis et al, 133 Mo. 168, the doctrine of which was challenged by Sherwood, J., in former decision. Same — Same — Liable for lack of diligence: — Action for damage to cotton which had become injured by water in defend- ant's warehouse, caused by a flood. The defendant had due notice of the probability of the flood by weather bulletins and by calls from plaintiff and requests of plaintiff that the cotton be moved to a safer place. Held: That the defendant warehouse- man owed the duty to its customers to exercise ordinary care and diligence to remove their cotton to a place of safety after defendant saw that it was likely to be submerged. Prince & Co. v. St. Louis Cotton Compress Co., 112 Mo. App. 49, 64. 556 MISSOURI DECISTONS. Same — Sonic — Same — Care required commensurate with e.vi- (/encics of the situation:— TW \varcli(iusc of (lefendaiit was lo- cated near a ereek whii-li drainod a certain portion of the city. Before the unprecedciUcd rain of l'H)3, plaintilT had stored with defendant certain nierchanchse ]ilainly labeled to be kept in a dry cool place, wliicli nicrciiandise was placed in the basement. The buildino' was equipjied with an electric freight elevator which coiilil be operated by one man from the basement. Defendant and defendant's agent knew that outside the warehouse there was a great deal of water and knew generally the extent of the flood. On the afternoon of the flood, an agent of plaintiff called at the warehouse, in(|uired as to the danger of water getting into the basement and was informed that there was none, but that there was some seepage in one corner. Held: That if de- fendant's negligence commingled with and operated as a contribu- tive element proximate to the injury, it is liable even though such injury was due to an act of God. Defendant as proprietor of a warehouse, even in a calamity produced by flood, was charged with the duty of exercising care commensurate with the exi- gencies of the situation in which it and the goods were then placed and to protect those whom it served from apprehended danger. Judgment for plaintiff affirmed. Johnson & Co. v. Springfield Ice and Refrigeratinr/ Co., 143 Mo. App. 441, 456. Larceny and burglary — I Warehouse and storehouse synony- mous: — An indictment charged burglary and larceny from a storehouse. It was insisted, on behalf of the defendant, that the trial court erred in allowing evidence to be introduced for burglary 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 im- proper designation of the building burglarized, and secondly, the words warehouse and .storehouse were synonymous. State V. Sprague, 149, Mo. 409. Damage to stored property — Cold storage — Evidence: — In an action to recover damages for negligent handling of butter stored with defendant the plaintiff claimed it liad become injured by contact with a fruity or ammonia flavor. Evidence as to value and amount of damage considered and held to be such that dam- ages could not be computed and that the verdict was the result MISSOURI DECISIONS. 557 of guess work. It was further held to be error for the court to particularize certain evidence as to the method of inspection of the butter and tell the jury that it was sufificient to authorize them to find one way. Judgment for plaintiff reversed. Dishrow v. People's Ice, Storage & Fuel Co., 138 Mo. App. 56. Negligence — Prima facie case — Defense: — A prima facie case of negligence against a warehouseman is made upon plaintiff showing that he deposited goods in the warehouse in good con- dition, which, upon demand, the warehouseman failed or re- fused to deliver, or delivered in a damaged condition. Plaintiff having so shown, it devolved upon defendant to introduce evi- dence of ordinary care on its part and establish that although the loss occurred, it was through no breach of duty of its part. Berger v. St. Louis Storage & Commission Co., 136 Mo. App. Z6, 40. Action by zvarehouseman for injury to goods tvhilc in his van — Pleading: — In a suit by a warehouseman against a street rail- way company for damage by collision with a street car to cer- tain furniture being conveyed by plaintifif in one of its vans it was held that it was not error for plaintiff to omit to allege in its petition that the furniture was in its possession as a common carrier ; that, as a bailee, plaintiff was entitled to recover the value of the furniture and further that defendant was not preju- diced by a failure to allege that plaintiff was in possession of the furniture as bailee. American Storage & Moving Co. v. St. Louis Transit Co.. 120 Mo. App. 410, AU. O. Measure of damages — Rule stated: — In an action against a warehouseman to recover for damage to cotton, held that the true measure of damages is the market value of the cotton on the day the demand of delivery is made, less the sum realized on a fair sale of the cotton, in its damaged condition, plus a reasonable expenditure in preparing it for market. Prince & Co. v. St. Louis Compress Co.. 112 Mo. App. 49, 66. P. Contract to insure goods — Warehouseman liable: — Where a warehouseman agreed with the owner of goods stored with him, 558 MISSOURI DECISIONS. at the time of deposit, to have the same fully insured against tire, lie is liable for the value thereof, in case of their destruction from this cause. Dazvson v. IValdheim, 80 Mo. App. 52. Loss by fire — Evidence as to location of warehouse — Plead- ing: — The defendant was sued, charged with liability as a ware- houseman, for the destruction by fire of goods belongmg to the plaintifT. stored in the defendant's warehouse. The petition al- leged 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 estab- lishment, the warehouse was not a safe place in which to store the flour. On the above pleadings it was held that evidence tending to prove that the defendant owned the property upon which the refining works were situated, and that such works were of very inflammable nature, etc., was properly excluded. Standard Milling Co. v. JVhite Line C. T. Co., 122 Mo. 258. Same — Insurance distributed pro rata: — A warehouseman, commission merchant and others having the custody of and be- ing responsible for property of their principals or consignors may insure such property in their own names, and may in their own names recover not merely the amount of their commissions or charges on such property, but the full amount of the policy up to the value of such property. When the policy by apt language covers the property of all such principals or consignors, and the amount of the insurance is less than the value of the property, a court of equity will decree that all the principals and the ware- houseman to the extent of the value of his own property, shall share pro rata in the proceeds of the insurance notwithstand- ing that certain of the principals had contracted with the agent warehouseman, etc., to insure their property to its full value. Ferguson v. Pekin Plow Co., 141 Mo. 161. Same — Insurance — Contract for indemnity: — Plaintiff, a rail- way company, leased to defendant's testator a certain part of its right of way, on which to erect a warehouse, upon condition that he should hold plaintiff harmless for all damages by fire or other causes, to the building and contents. Owners of property in the building destroyed by fire caused by plaintiff's engines re- covered judgments against plaintifif, who sued upon the above- mentioned provision in the lease. Held: That the contract was MISSOURI DECISIONS. 559 one to indemnify plaintiff against loss for having to pay damages because of the negligence of its servants in running its trains, and that plaintiff was entitled to recover. Wabash R. R. Co. v. Ordelheidc, 172 Mo. 436, approved in Ordelheide v. Wabash R. R. Co.. 175 Mo. 337. Q. Warehouse receipts — Issued by tvarehouseman against his own goods not a "warehouse 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. Merchants' National Bank, 2 Fed. Rep. 174; S. C, 9 Bliss. (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 right 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 Dispatch v. Compress Co., 6 Mo. App 172; Fourth National Bank v. St. Louis Cotton Conip. Co., 11 Mo. App. 333; Shaw 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 owner 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 was not intended for such a case as this. James et al. v. Evans et al., 62 Mo. 375. 560 MlSSlJl'KI DKflSIONS. Sliihc — ColhUriiil srciirity: — A \;ili(l plodj^jc of property may bo niado h\- the (loli\iMy of the hill of sale, copy of jjauj^er's re- turn, and waichousc receipts, for these are symhols of the prop- erty itself, i'oiirad v. Flslirr, 37 Mo. App. 3S2. Same — Sa)tic — l^raiisfrrs possession as a(/aiiist creditors: — nefoiidanl stored certain j^rain with a warehouse conijjaiiy which leased a building of defendant and received a warehouse receipt therefor. He then borrowed money of the company and assigned tlie receipt as security. The property was attached by a creditor of the defendant, and the wareliouse company filed an interpleader. Held: The property was not in the possession of the \endor but was actually in the possession of a third party as bailee. An order for the property on its sale, or on its being mortgaged, or pledged, on notice to the bailee, is all that is nec- essary to transfer possession as against creditors of the vendor, judgment for interpleader affirmed. Porter v. Shotzvell, 105 Mo. App. 177. Same — Same — Pre-existing debt: — Plaintifif sold wheat to R., under circumstances which the court held required T. to i)ay cash on delivery. R's check was not honored and it was held title to the wdieat did not pass to the buyer. Warehouse receipts had been issued and sent to R. who deposited them with defendant as collateral to secure his over drafts. Pleld: That the facts in the case showed that the consideration for the transfer of the warehouse receipt was a pre-existing debt ; that at the time of the delivery of the receipts to defendant, the money had been paid on the overdrafts and the debt was then in existence; that one taking a negotiable instrument as collateral security for a pre-existing debt is not a bona-fide holder for value and is sub- ject to the equities existing between the original parties. Judg- ment for plaintifif for value of the wheat affirmed. Wright v. Mississippi Valley Trust Co.. 129 .S. W. 407. Same — .-Ittornment by 7varehoiisema}i not necessary: — Attorn- ment by a warehouseman is not required by the laws of Mis- souri in order to complete a symbolical delivery. In fact, the general rule in this country is that such attornment is not neces- sary; in Massachusetts it appears that the English doctrine of attornment has been followed. Id. MISSOUEI DECISIONS. 561 Same — IV hat constitutes: — A negotiable warehouse receipt is one given for goods stored or deposited. It must contain an ob- ligation to hold the property, represented thereby, in store. An instrument which is in effect an agreement to ship the goods is not such a receipt. Union Savings Assn. v. St. Louis Grain Ele- vator Co., 81 Mo. 341 ; Same v. Same, 16 Mo. App. 560. R. Bill of lading — Transfer thereof: — The transfer of a bill of lading passes the title of the property represented thereby. The holder of such bill holds the legal title to the goods, and is entitled to all the rights of a botia fide purchaser for value, and when the consignor transfers the bill of lading for value, he loses his con- trol over the goods, and has no right, therefore, to give directions to the carrier with regard to transportation. White Live Stock Co. V. Chicago, Mihvaukee & 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 a)id contract — Parol testimony: — A bill of lad- ing partakes of the nature of a receipt, and of a contract. So much as partakes of the nature of a receipt may be explained or contradicted /by parol testimony. Steamboat Missouri v. U^ebb, 9 Mo. 192. Indictment — Theft from Warehouse: — The defendant was in- dicted for theft from a granary warehouse and building, the same l)eing a building in which divers goods and various things were kept for sale and deposit. It was contended 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. Unhnvful sale by zvarehouseman — Requisites of itidictment: — Section 742. K. 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 lichl that under this section, it must be aflirma- tivelv charged, in tin- indictment again>t the warehouseman, for tile violation of its provisions, thai he sold or removed the 36 562 .MISSOURI DRCTSIONS. stored pnipcrty witlunit llie assent of the holder of the receipt therefor. State v. /\/V/'v. 115 Mo. 440. U. Constitutionality of act relating to ivarehouse receipts under section 32. article 4, of the constitution of Missouri: — Section 32, article 4. of the constitution of the state of Missouri declares: "No law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title." De- fendant 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 provided that any person who shall purchase any goods or other commodity, for cash, and sell, hypothecate, or pledge the same to another, and use the proceeds thereof for any other purpose than the payment of the purchase price, with intent to cheat or defraud such vendor, shall be guilty of a felony, was unconstitutional 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 warehouse 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 there- on. The lease could be terminated by the city upon six months' notice to the lessee. The warehouseman served the public by receiving grain from the boats on the Mississippi river. It was contended 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 be 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; MISSOURI DECISIONS. 563 further, that, like a railroad or steamboat, the property is private and is operated for private gain, but the use is public. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., lOl'Mo. 192, Where the city had leased the property to the defendant uncon- ditionally, it was there Jield 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 public regulations, and the state may prescribe regulations even as to the charges of storage. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 101 Mo. 192; Munn v. Illinois. 69 111. 80, aff'd 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 criti- cised. 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. See note to People v. Budd in New York decisions, this volume, p. 676. ( 564 MONTANA LAWS. el I AFTER XXVI MONTANA I-.WVS l'KKTAl.\MN(i TO WAREHOUSEMEN Storage — Deposit for hire: — A deposit not gratuitous is called st(U-asj^e. The depositary in such case is called a depositary for hire. Rev. Codes. ATont.. 1907. Sec. 5157. Degree of care required for depositary for hire: — A de- positary for hire nuist use at least ordinary care for the preser- \ation of the tliins^ dej^osited. Jd. sec. 5158. Rate of compensation for fraction of a week, 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. 5159. Termination of deposit: — In the absence of an agreement as to the length of time during which a deposit is to continue, it may be terminated by the depositor at any time, and by the depositary upon a reasonable notice. Id. sec. 5160. 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. 5161. Sale to pay costs of storage: — Any storage or commission merchant receiving personal property from any person for storage and any common carrier of goods by whom any personal property is lawfully stored before or after the transportation thereof, may. after keeping the same in store for ninety days, in default of the payment of the storage or freight money on such personal property, advertise and sell the same at public auction, to the highest bidder, for cash, first giving notice of the time, Ihe terms, and place of sale, and a description of the MONTANA LAWS. ^^^ property to be sold, by publication in some newspaper published in the county where the property may be stored. Said notice shall be published at least once a week for four weeks next previous to the day of sale, and shall specify the amount due on the property to be sold. When a specified time has been agreed upon between the parties for the storage of said property, the same shall not be advertised until the expiration of the time agreed upon. Should there be no newspaper published in the county where such property is stored, then notice may be given in the newspaper published nearest thereto, in some other county, in this State. But no more of such property shall be sold than is necessary to i)ay the charges due. together with the costs. Id. sec. 5162. Application of proceeds of sale:— After paying the expenses of sale, including the publication of notice, the storage or com- mission merchant, or the carrier, shall be authorized, out of the proceeds arising from the sale of the property, to retain the amount due him for storage or freight money, or both, due upon any such property, and the excess, if any, must be paid over to the person entitled to the proceeds thereof. All sales under this Article shall vest the title to the property sold in the pur- chaser thereof. Id. sec. 5163. Property upon which advances are due, may be sold when: — 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 ninety 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. 2007. 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 or representing any carrier, who delivers any bill of lading, receipt, or other voucher. l)y which it appears that any merchan- dise of any description has been shipi)ed on board any vessel, 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, owner, or agent of such vessel, or of some officer or agent of such company, to be forwarded as expressed in such bill 5lit3 MONTANA LAWS. of lading:, receipt or voucher, is punishable by imprisonment in the state prison not exceeding live years, or by a line not exceed- ing one thousand dollars, or both. Id. sec. 8731. Issuing fictitious warehouse receipts: — Every person carry- ing on the business of a warehouseman, wharfinger, or other de- positary 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 is issued to a person as being the owner of such merchandise, or as security for any indebtedness, 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. 8732. Erroneous bills of lading or receipts issued in good faith: — No person can be convicted of any offense under the last two 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 description 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 such marks, labels, or brands were untrue. Id. sec. 8733. 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 therein, at a time while any former receipt or voucher for the merchandise specified in such second receipt is outstanding and uncancelled, without writing across the face of the same the word "duplicate" in a plain and legible manner, is punishable by imprisonment in the state prison not exceeding five years, or by a fine not exceed- ing one thousand dollars, or both. Id. sec. 8734. Selling, etc., property received for transportation or storage : — 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 consent in writing thereto of the person holding such bill, receipt or voucher, is punishable by imprisonment in the state prison not MONTANA LAWS. 567 exceeding five years, or by a fine not exceeding one thousand dollars, or both. The provisions of this section do not apply where the property is demanded or sold under process of law. Id. sec. 8735. Grain elevators ; location of on railroad right of way — Writ- ten application and contents thereof — Upon paying compen- sation shall have absolute right to locate — In case parties do not agree to location or site — District court to determine as to quantity and location of land : — Any person, firm or corpo- ration desirous of erecting and operating at or contiguous to any railway station or siding a warehouse or elevator for the purchase, sale, shipment or storage of grain (including flax seed) for the public for hire may make application in writing, containing a description of that portion of the right of way of said railroad on which such person, firm or corporation desires to erect a warehouse 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 such warehouse or elevator, to the person, firm or corporation owning, leasing or operating the railroad at such station or siding for the right, privilege and easement of erecting and maintaining for the time stated in such application, and for reasonable compensation for such ware- houses or elevator as aforesaid upon the right of way pertain- ing to such railway at such siding or station and within and between the outside switches of the yard of such railway sta- tion or siding and upon paying or securing in the manner here- inafter prescribed reasonable compensatidn for the right, privi- lege and easement aforesaid, shall absolutely and uncondition- ally be entitled to the same. Provided, however, that if the person, firm or corporation owning, leasing or operating the railroad is not willing that the portion of the right of way •^elected by the applicant should be appropriated for such pur- pose and the parties cannot agree as to the quantity and location of the land upon which such grain warehouse or grain eleva- tor shall be erected the matter shall be determined by the dis- trict court in the same manner and by the same proceeding for determining the amount of compensation to be paid where the parties cannot agree as to the amount. An Act providing a summary method for i)rocuring the right to erect a grain ware-house or grain elevator on Railroad Rights 568 MONIANA LAWS. cf W ay. .\i)i)rovccl March 1, 1913, Laws, Montana, 1913, Chap. 43, pas^e 60. Sec. 1. Application for site to state what additional matter — Dis- trict Court has jurisdiction to determine amount of compen- sation — Court to be always open in session for purposes of this article — Railroad to notify applicant within 30 days of acceptance or rejection of application — Railroad failing to give notice: — Tlio a]iplication provided in Section 1 of this act shall also state the amount the applicant deems reasonable com- ])ensation for the ris^ht. privilege and easement he desires to acciuire. and said applicant shall tender and pay to such person, 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 he ])ai(l for such right, privilege and easement, the same shall he ascertained, assessed and determined by pro- ceedings in the District Court of the county in which the sta- tion or siding at which the right, ])rivilege 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 article. Tt shall be the duty of any per- son, tirm or corporation to whom application is made for the right to erect and maintain an elevator or warehouse, under the provisions of this article to within thirty days after the receipt of such application notify said applicant in writing of the ac- ceptance or rejection of the amount stated in said application to be reasonable compensation for the right, privilege and easement sought to be acquired, and in case such person, firm or corpora- tion fails to notify the applicant within said thirty days, such person, firm or corporation shall be deemed to have accepted said amount and upon the payment or tender thereof said appli- cant shall be deemed to ha\e ac(|uired the right, privilege and easement applied for. Id. vSec. 2. Proceedings in District court — Petition and contents — Time to be fixed within which issue to be joined — Service of notice, contents of notice — To expedite trial — Findings of court or jury — Defendant shall elect to accept or reject findings — Judgment to be for what — Right of party instituting proceed- ings — Payment of rental — Failure to pay forfeits right: — Proceedings in the District Court shall be instituted and carried MONTANA LAWS. 569 on as follows : The parties seeking the right, privilege and ease- ment aforesaid shall present to and file with 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 proceed- ings are unable to agree upon the amount of compensation there- for. A copy of the application for such privilege shall be at- tached to said petition, and thereupon it shall be at once the duty of the court by its order in writing to fix a time, not more than thirty days thereafter within which the said person, firm or corporation so owning, managing or controlling such rail- road shall appear and join issue in said proceeding; such no- tice shall be served as a summons is served in civil actions, and shall be ample notice to the parties so served to appear and join in the proceedings, and shall be ample to give the court full jurisdiction over the party against whom the proceedings are instituted and the property involved in the proceeding. The manner of joining issue and the procedure at the trial shall be the same as that in any other civil action at law. The trial of such issue shall be expedited by the court as much as possible. At the trial the court or jury, as the case may be, shall find and assess the compensation both in the form of an annual rental and in the form of a gross sum for the right, privilege and ease- ment sought, and immediately 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 said party, then the other party to the proceedings may make such election, and after election is made as aforesaid, judgment shall be rendered adjudging, among other things, that upon payment of the gross sum found, or the annual rental found, yearly in advance, as the case may be, the party instituting the proceed- ings shall be entitled to the right, privilege and easement of erecting and maintaining the elevator or warehouse asked for in the application and petition aforesaid, and for the time therein specified ; and thereupon the party in whose favor said judg- ment is rendered shall be entitled to a writ of execution in prop- er form to immediately invest such parly with the right, privi- lege and easement aforesaid. Tn case the aiinunl rental is elect- ed, the same shall be paid yearly in advance, and if not so paid 570 MONTANA LAWS. after thirty days' default, the right, privilege and easement afore- said shall he ahsolutcly forfeited. Id. Sec. ?>. Appeal may be taken when — Appeal shall not stay judgment if indemnity bond is given by plaintiff — Condition of bond — Costs — Who deemed the unsuccessful party — Appeal from judgment determining quantity and location of land: — With- in thirty days after the entry of said judgment as hereinbefore provided, but not later, an appeal may be taken by either ])arty 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 JLidgmenl, if the jiarty instituting the proceedings shall make and file a bond with sureties, to be approved 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 dis- bursements, as in civil actions, in each court, shall be paid by the unsuccessful party. If the finding of the court or jury is for a less or the same amount as tendered by the petitioner be- fore instituting the proceedings, then the petitioner 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. Either party may appeal from that part of the judgment determining the quantity and location of the land Vipon which such warehouse or elevator is to be erected, and in the event of such appeal the judgment shall be suspended l)ending the appeal. Id. Sec. 4. Elevators and warehouses erected under provision of this act deemed public: — All elevators and warehouses erected and maintained under the provisions of this article, shall be deemed public elevators, and public warehouses, and shall be subject to legislative control. Id. Sec. 5. When erection of warehouse or elevator to be commenced and completed — Failure to comply with this section : — Any person, firm or corporation 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 determined, by agreement or by proceedings in court commence the erection of the warehouse or elevator mentioned in the application, and complete the same within ninety days thereafter, and in case of MONTANA LAWS. 571 failure to comply with the provisions of this section, such person or persons shall be deemed to have abandoned the right ac- quired, and the part or portion of the railroad right of way de- scribed in the application shall be subject to selection by other applicants who may desire to avail themselves of the provisions of this act. Id. Sec. 6. Duty of railroads to connect warehouses and elevators by sidetracks — To permit connections with sidetracks — Railroad not required to construct or furnish sidetracks except upon its own lands — Cost of sidetracks and connections to be paid by whom — Elevators and warehouses to be constructed when — When sidetracks between stations shall be constructed: — Every railroad company or corporation organized under the laws of this state, or doing business therein, shall, upon appli- cation in writing provide reasonable sidetrack facilities and run- ning connections between its main track and elevators and ware- houses upon or contiguous to its right of way at stations; and every such railroad corporation shall permit connections 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; pro- vided, that such railroad company shall not be required to con- struct or furnish any side tracks except upon its own land or right of way; provided, the reasonable cost of the construction of such side tracks and connections, except the cost of the rails and fastenings, shall be paid by the person or persons for whose benefit such side tracks are provided or connections made; pro- vided, further, that such elevators and warehouses shall not be constructed within one hundred feet of any existing structure, and shall be at safe fire distance from the station buildings and so as not essentially to conflict with the safe and convenient op- eration of the road; and where stations are ten miles or more apart, the railroad company, when required so to do by the Board of Railroad Commissioners of the State of Montana shall construct and maintain a side track for the use of shippers be- tween such stations. Jd. Sec. 7. State Grain Inspection Department created: — A Depart- ment of record for the inspection and weighing of grain is here- by established to be called "The State Grain Inspection Depart- 572 MONTANA LAWS. ment." Said Department shall have full charge of the inspec- tion and weighing of grain at all public warehouses. An Act relating to Grain Elevators, Grain Warehouses and Grain Inspection in the State of Montana and elsewhere, fixing fees to be collected as incidental to the main purpose of the Bill as aforesaid ami appropriating money to carry forward said main purpose, to-wit the creation of a Grain Inspection Depart- ment in the State. Approved March 1, 1913, Laws Montana, 1013. Chap. 47, page 67, Sec. 1. Chief Grain Inspector; appointment of — Term of oflfice — May be removed by the governor at any time — Qualifica- tions : — It shall be the duty of the Governor to appoint a suit- able person, to be confirmed by the Senate, who shall be known as the Chief Grain Inspector for the State of Montana, whose term of service shall be designated by the Governor, not exceed- ing two years, and may be limited by the Governor in his dis- cretion to parts of a year, and who may be removed by the Gov- ernor at any time, with or without cause. Said Chief Inspector shall not be interested in buying or selling 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 warehouse- man, or on private account during his term of office. Id. Sec. 2. Duties — Rules and regulations — Records of inspection and weighing — Complaints of fraud and oppression: — It shall be the duty of the Chief Inspector to have general supervision of the inspection and weighing of grain, as required by this act, or the laws of the State, to supervise the handling, inspecting, weighing and storage of grain ; to establish necessary rules and regulations therefor, and for the management of the public ware- houses of the State, subject to the approval of the Governor, as such rules and regulations may be necessary to enforce the provisions of this Act, or any laws of this State in regard to the same ; to keep proper records of all the inspecting and weighing done into and out of warehouses licensed by law to do business in this state, for which purpose he shall have provided books, blanks and other materials needed in order to keep perfect and proper records. He shall investigate all complaints of fraud or oppression in the grain trade and correct the same, so far as may be in his power. Id. Sec. 3. MONTANA LAWS. 573 Oath and bond of office — Conditions of bond: — The Chief Inspector shall, before entering upon the duties of his office, take the constitutional oath of office. He shall execute a bond to the State of Montana in the penal sum of Ten Thousand Dollars, with sureties, to be approved in the same manner as bonds of other appointive State Officers, conditioned that he will pay all damages to any person or persons who may be in- jured bv reason of his neglect, refusal or failure to comply with the law and tlie rules and regulations of this Act. Id. Sec. 4. To recommend to Governor supervising inspectors — Duties of supervising inspectors — To recommend to Governor super- vising weighmasters in cities, towns, etc. — Duty of weigh- masters — Assistant inspectors and weighmasters — Other em- ployees: — The Chief Inspector shall be authorized to recom- mend to the Governor a suitable person as supervising inspector in each city, town or place in the State where one or more pub- lic warehouses may be doing business under the law, whose duty it shall be to visit at reasonable times the elevators and railroad tracks, supervising all inspections, with a view to securing uni- form inspection of grain. The Chief Inspector is also author- ized to recommend to the Governor a suitable person as super- vising weighmaster in each city, town or place in the State where one or more puliHc warehouses may be doing business under the law, whose duty it shall be to visit at reasonable intervals the elevators and railroad tracks, supervising all weighmasters, in- specting scales, and the loading and unloading of grain, with a view to securing correct weights on all grain weighed by the Department. The Chief Inspector is also authorized to recom- mend to the Governor suitable and qualified persons as assistant inspectors, and assistant weighmasters, who shall not be inter- ested in any public or private grain warehouse or in buying or selling of grain, either directly or indirectly, and also such other employees as mnv he necessary to properly conduct the business of his office; and the Governor is hereby authorized to make such appointments, if found by him to be necessary, and not otherwise. Id. Sec. 5. Chief Inspector to have supervision of subordinate officers — Reports to Chief Inspector — Oath and bond: — .Ml supervis- ing inspectors, assistant inspectors, and assistant weighmasters .shall be under the supervision of the Chief In.spector, to whom 574 MONTANA LAWS. they shall report in detail all the services performed by them at such times as may be required by the Chief Inspector ; such assistants to take the same oath as the Chief Inspector, and each shall execute a bond in the sum of Two Thousand Dol- lars, with like conditions and to be approved in like manner as the bond of the Chief Inspector. Id. Sec. 6. Standard samples of grains to be furnished on request: — Tt shall be the duty of the Chief Inspector to furnish any public elevator or warehouse in the State with standard samples of the different grades of grain as established liy official inspection, when requested so to do, at the actual cost of such samples. Id. Sec. 7. Inspection fees, weighing, re-inspection, etc. — Where scales are furnished for weighing in cars — Inspection and weighing of empty cars — Information to be mailed to consignor — Fees for weighing and inspecting when track scales are furnished — Where grain shall be weighed — Certificate of weight to be furnished shipper and duplicate to be attached to way bill — Prima facie evidence of weight — When fees may be fixed by chief grain inspector: — The fees collectable shall be as follows : For inspecting and sampling each carload of grain; for inspect- ing out of elevators ; for weighing into warehouses, mills or ele- vators ; for weighing out grain that has been previously weighed by the State, where certificates are required ; for weighing out where no certificates are required ; not to exceed one dollar per car load of grain in any instance; for re-inspecting where the former inspection and grade are sustained, not to exceed one dollar i)er car ; and in all cases where extra samples of car lots of grain inspected are demanded, the charge per each sample shall be twenty-five cents. Provided, further, that whenever track scales are furnished by the elevator or warehouseman suitable for weighing all grain in car load lots, all grain de- livered to such elevator or warehouse shall be weighed by the State Grain Inspection Department before the seal of the car in which it is loaded is broken ; and thereupon such grain shall be tested, inspected and graded : and after the grain has been re- moved from such car. the car, shall, by the Department, be in- spected, and again weighed. The name and postoffice address of the consignor of such car, when known to the Department, shall within ten hours after inspecting such grain, be mailed MONTANA LAWS. 575 or delivered to the consignor, with a statement of the gross weight of such carload of grain, tlie total net weight of such grain, the test weight per bushel, and the grade of such grain; and for each car so inspected and weighed on such track scales so provided by the elevator or warehouseman, the fee for weigh- ms into the warehouse, mill or elevator, shall not exceed one dollar per car. It is further provided that all grain loaded for shipment shall be weighed at the first track scale enroute, where there is a deputy grain inspector, under the supervision of such grain inspector ; the said grain inspector shall issue a certificate to the shipper, and shall attach a duplicate thereof to the way bill, which certificate, or the duplicate thereof, shall be prima facie evidence of the amount of grain loaded in the car, in all the Courts of this State; fees for such weighing and certificate shall not exceed one dollar per car. The fees collectible where not definitely fixed herein shall be fixed by the Chief Grain Inspc- tor wnth the approval of the Governor and may be changed and adjusted from time to time as necessity requires. Id. Sec. 8. Lien of inspection and weighing charges — Common carrier to collect, when: — The charge for inspection and weighing of grain shall be a lien on the grain so inspected and weighed, and whenever such grain is in transit, tlie said charges shall be treated as advanced charges and shall be collected and paid by the common carrier in whose possession the same is at the time of such inspection and weighing. Id. Sec. 9. Monthly reports of Chief Inspector — Fees to be paid into state treasury: — The Chief Inspector of Grain shall, on or before the 10th day of each month, file with the State Auditor a full and detailed report under oath, of the work done by his department for the preceding month, setting forth the number of cars of grain ins])ected and weighed, and by whom, the number of samples furnished, the amount of revenue collected by him- .self and assistant inspectors and weighmasters ; and the Chief Inspector shall, at the time oi filing such report, pay into the State Treasury all moneys received as fees by his department, which shall be credited to the general fund. Id. Sec. 10. Office of Chief Inspector at the Capitol — Salary and ex- penses — Salaries of supervising and assistant inspectors and weighmasters — Secretary and salary: — The Chief Inspector shall keep his office at the Cajiitol buiUliiig in the City of 570 MONTANA LAWS. Helena, and shall receive a monthly salary of one hundred and lifty dollars, and shall be allowed all actual and necessary trav- eling expenses paid in cash while attending to his ofticial duties; all supervising inspectors, supervising weighmasters, assistant inspectors and assistant weighmasters shall receive a monthly sal- ary of one hundred dollars per month while actually employed, and the Governor may appoint a Secretary of the Department of Grain Inspection, if he deems it necessary, who shall receive a salary of one hundred dollars per month, and be removable at the pleasure of the Governor. Id. Sec. 11. Misdemeanors — Penalty: — Any Chief Inspector, inspector or weighmaster who shall be guilty of neglect of duty, or who shall knowingly or carelessly inspect, grade or weigh any grain improperly, or who shall accept any money or other valuable thing or consideration, directly or indirectly, for any neglect of duty, shall be deemed guilty of a misdemeanor, and on convic- tion thereof shall be fined in a sum not exceeding five hundred dollars, or imprisoned for not more than six months in the county jail, or shall suffer both such fine and imprisonment. Id. Sec. 12. Official inspection and weighing to be done only by whom — Misdemeanor: — The official inspection or weighing of grain in this State whether into or out of public warehouses or eleva- tors, 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 and qualified according to law, and any person who shall act as offi- cial inspector or weigher of grain who has not been first duly appointed and qualified, shall be guilty of misdemeanor. Id. Sec. 13. To bribe or offer to bribe an officer a felony: — Any person who shall bribe or offer to bribe any of the officers created under this act shall be deemed guilty of a felony, and shall be pun- ished as provided in Section 8198 Revised Codes. Id. Sec. 14. Re-inspection may be called for or an appeal taken, when — Standing appeal committees decision — Fees of committee to be paid in advance — On successful appeal fees to be re- turned: — In case any owner, consignee, or shipper of grain or any warehouse manager, shall be aggrieved by the decision of any inspector or weighmaster, a re-inspection may be called MONTANA LAWS. 577 for, or an appeal may be taken to a standing committee of three, which the Chief Inspector shall appoint at every place where State Inspection shall be established. Said Committee shall consist of experienced grain men, and their decision shall be final ; Provided that the party appealing shall pay said Commit- tee the sum of two dollars each, per case appealed, before said appeal shall l)e entertained; and in case said appeal is not sus- tained, the said six dollars so deposited shall be full compen- sation for such arbitration. If the appeal is sustained, the ap- pellant shall receive six dollars from the State Treasurey, upon an order issued by the State Auditor, upon a voucher in writing bv the Chief Inspector. Td. Sec. 15. Grain may be sold by sample regardless of grade — Act not to change liability of warehouseman: — Nothing in this Act shall be construed so as to prevent any person from selling grain by sample, regardless of grade; and the provisions of this Act shall not change the liabilities of the warehouseman on grain now in store, nor the inspection thereof, l)ut said inspec- tion shall ])e had under the same system, or lack of system, under which it was received into store. /(/. Sec. 16. Attorney General ex-officio attorney for state grain in- spector — Criminal prosecutions: — The Attorney (leneral shall jje Ex-(jrticio Attorney fur the State Grain Ins])ection Depart- ment, and shall give all necessary advice to that department. All criminal prosecutions shall be prosecuted in the name of the State of Montana by the proper county attorney. Id. Sec. 17. Public warehouses defined — Public warehousemen de- fined: — All elevators and warehouses located in the State in which grain is stored in l)ulk, and in which the grain of differ- ent owners is mixed together, or in which grain is stored in such manner that the identity of the different lots or parcels cannot be accurately preserved, and doing business for a compensation, are hereby declared ])ublic warehouses, and the ])erson, firms, associations, or corjjorations operating or owning the same, or any other person or persons who buy or sell grain in carload lots for shipment arc public warehousemen. Id. Sec. 18. Public warehouses and warehousemen required to procure licenses — Application for license — License revocable when and how:- The proprietor, lessee, or manager of any i)ul)lic 37 578 MONTANA LAWS. wareliouse. atid every public warehouseman, shall be required within sixty days after the passage of this Act, to procure from the Chief Inspector a license to transact business as a public warehouseman, and shall make written application therefor, setting forth therein the name of such warehouse or designation of where he is doing business, and the individual name and post- oftice addresses of each person interested as owner or principal in the ownership and management of the same; or if owned or managed by a corporation the names and postoffice addresses of the President and Secretary, and said license shall give au- thority to carry on and conduct the business of a public ware- house in accordance w^ith the laws of the State, and shall be re- vocable by the Chief Inspector, after approval of his decision by the Attorney General, upon complaint being made in writing, setting forth the particular violation of the law, and upon due notice and hearing and sufficient proof. Id. Sec. 19. Bond of public warehouse — Conditions of — Filing fee for bond: — Before receiving a license, every person, company or corporation applying for the same shall file with the Secretary of State a bond to the State of Montana, for the benefit of all persons interested, with sureties to be approved by the Chief In- spector, in the penal sum of not less than ten thousand dollars nor more than one hundred thousand dollars, in the discretion of the Chief Inspector, conditioned upon the faithful perfor- mance of all duties as a public warehouseman and full compli- ance with all the laws of Montana, enacted or to be enacted in relation thereto. A fee of one dollar shall be paid to the Secre- tary of State for filing such bond. Provided, that when any per- son, company or corporation procures a license for more than one warehouse in the State, but one bond shall be required. Id. Sec. 20. Misdemeanor to transact business of public warehouseman without a license and giving bond: — Any person who shall transact the business of a public warehouseman, without first procuring a license and filing such bond as hereinbefore pro- vided, or who shall continue to transact any such business after such license has been revoked (save only that he shall be per- mitted to deliver property previously stored in such warehouse) shall be deemed guilty of a misdemeanor. Id. Sec. 21. MONTANA LAWS. 579 Duty to receive grain in usual course of business without discrimination — Grain shall be inspected, weighed and graded by duly authorized inspector and weigher — Not to be con- strued to require receipt of any kind of grain when there is not proper storage room or warehouse is necessarily closed — Charles for inspection and weighing to be paid by warehouse- man: — It shall be the duty of every public warehouseman whenever inspection and weighing is or shall be established, 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 in the persons desiring to avail themselves of warehouse facilities; such grain to be in all cases inspected, weighed and graded by a duly authorized inspector and weigher (but to be stored with grain of a similar grade), and all grain delivered from such warehouse shall be inspected and weighed on its delivery by a duly authorized inspector and weigher of grain, if one has been appointed at said place. Nothing in this section shall be con- strued to require the receipt of any kind of grain into a ware- house in which there is not sufficient room to accommodate it or store it properly, or in cases where such warehouse is nec- essarily closed. The charge for inspection and weighing upon receipt and delivery shall be paid by the warehouseman and may be added to the charge of the storage. The Chief Inspector may recover such charges of the warehouseman by an appropri- ate action in his own name. Id. Sec. 22. Warehouse receipts to be issued when — Warehouse receipts; statement and contents of: — Upon the application of the owner or consignee of grain stored in any public warehouse, the same being accompanied by evidence that all transportation and other charges which might be a lien upon the grain, including the charge for freight, inspection and weighing, having been paid, the warehouseman shall issue to the person entitled to receive it, warehou.se receipt therefor, subject to the order of the owner or consignee of it, which receipt shall bear date corresponding with the date of receipt of the grain for storage, and shall state upon its face the quality and respective grade of grain, and that the grain mentioned in it has been received in store, to be stored with grain of the same grade by inspection, and that the grain TiSO MONTANA LAWS. niontioiKHl therein is (leli\eral)lc up(.)n the return of the receipt l)ropertly endorsetl hy the person to whose order it was issued, and the payment of the proper charges for storing and handling. Id. Sec. 23. Warehouse receipts to be consecutively numbered — Lost or destroyed receipts — Numbers of car to be stated on receipts: — All warehouse receipts for grain issued l)y 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 year, 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 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 that 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. 24. When receipts to be marked "Cancelled," — Receipts shall not be delivered until when — Regulating issueing of receipts — Partial delivery of grain stored — New receipts — Cancella- tion — Consolidating and dividing receipts — Statement in Sub- stituted receipts: — Upon the delivery of grain from store, upon receipt, such receipt shall be plainly marked "Cancelled" upon its face, with the name of the person cancelling the same, and 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 delivered except upon an actual de- livery of grain into store into the the warehouse from which it purports to be issued, and which is to be represented by the re- ceipt. Nor shall any receipt be issued for a greater quantity of grain than was contained in the lot so received, nor shall more than one receipt be issued for the same lot of grain, except in cases where a receipt for a part of a lot is requested, 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 delivered out of the store and the remainder is left, a new receipt may be issued for such remainder, but the new re- ceipt 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 U])on which a part has been delivered shall be MONTANA LAWS. 581 cancelled in the same manner as if all had been delivered. In case it is desired to divide one receipt into two or more, or to consolidate two or more receipts into one, and the warehouseman consents thereto, the original receipt or receipts shall be can- celled the same as if the grain had been delivered 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 re- ceipts, as the case may be, and the number of the original re- ceipt shall 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 permitted. All new receipts issued for old ones cancelled shall bear the same date as those originally issued. Id. Sec. 25. Legal responsibility not to be altered by statement on re- ceipts: — No warehouseman shall insert in any receipt any language limiting or modifying his liabilities or responsib'ilities as imposed by law. Id. Sec. 26. Grains to be delivered upon surrender of receipt when and where — Liability of non-complying warehouseman — Proviso: — On the return of any warehouse receipt properly endorsed, and the tender of all proper charges upon the prop- erty represented by it, such property shall be immediately de- livered to the holder of such receipt, either at the elevator where originally stored or at a terminal point designated by the owner or consignee, and shall not be subject to any further charges for storage, after demand for such delivery has been made ; and the property represented by such receipt shall be delivered within forty-eight hours after such demand shall have been made, and the cars or vessels for transportation shall have been furnished. The warehouseman on default shall be liable to the owner of such receipt for damages occasioned by such default; Provided, no warehouseman shall be held to be in default if the property is delivered in the order demanded, and as rapidly as due )iiiiii>ii lai>.' and stalittor\': — It is one of the charac- teristics of common-law liens, as distinguished from liens created l)y contract or statute, that the former as a general rule attach to the pro])erty itself, without any reference to ownership, and over- ride all other rights in the property, while the latter are subordin- ate to all prior existing rights therein. Sullivan v. Clifton, 26 \^r. 324. Lien — Demand for more than contract price a waiver of: — The defendant T. agreed to cart plaintifif's goods from one place to another for $5.50. He refused to deliver the second load unless $7 were paid, and on plaintifif's refusal to pay, took the goods to the warehouse of L., who paid him $7 and issued a warehouse receipt. Plaintifif tendered L. the storage for one month then due, but L. demanded payment for an additional month, besides the $7. In action of replevin for the goods, held: that T.'s refusal to deliver the goods can only be justified in case he had a lien for his charges. If he had such a lien, he would have lost it by a tender and refusal of the $5.50 agreed upon. That his demand of a price in excess of the contract price amounted to a waiver of a tender of the $5.50. That L. was not entitled to be paid for two months' storage and his demand for the second month's storage in addition to the $7 was a waiver of any lien he may have had. Judgment for plaintifif. Stephen- son V. Lichtenstein, 72 N. J. L. 113. N. Delivery — To one purchasing under conditional sale agreement — Demand: — One G purchased of plaintifif a sewing machine under an unrecorded conditional sale contract and afterward stored the machine with defendant, a warehouseman and received a warehouse receipt. Subsequently, G being in default in her payments, plaintifif demanded the machine of defendant, who refused to deliver it to plaintifif, and, instead, delivered it to G upon the presentation of the warehouse receipt. In an action in trover for conversion against warehouseman it was held: that NEW JERSEY DECISIONS. 611 although at the time the machine was stored, G was in default in her payments and plaintiff was entitled to demand of G the machine and to retake it, as a matter of fact no demand was actually made before the institution of the suit. Hence, no de- mand under the agreement having been made, the proof was that the right of possession in the machine was in G and that plaintiff could not maintain the action. Wheeler & Wilson Mfg. Co. V. Brookfield. 70 N. J. L. 703. Reversing 68 N. J. L. 478. see also Stephenson v. Lichtenstein. 72 N. J. L. 113. Same — Property removed by operation of laiv — Delivery to holder of receipt — Good defense: — A warehouseman cannot, without liability, deliver to any other than the bailee or his trans- feree, and cannot defend against the receipt holder for damages on ground that he had delivered to another and justify under that other's title. He can only justify for failure to redeliver on ground that "the property has been removed by operation of law." One claiming possession of property stored by another with a warehouseman must proceed to recover it by operation of law, and until it is so removed the warehouseman may deliver it to the receipt holder and the statute will protect him from a suit for conversion. Id. 68 N. J. L. 478. U. Attempt to compel service by injunction — Analogy between one conducting stockyard and a zvarehouseman — Not subject to public control — Equity jurisdiction: — Complainant, a railroad corporation, attempted to compel the defendant, a corporation created for the purpose of carrying on 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 defendant's business was one of recent origin it was difficult to find its counterpart in any of the estab- lished instruments of commerce, but that it bore a closer resem- blance to the business carried on by warehousemen than to any other business known to the law. h^irther that in order to entitle complainant to the relief asked it must show its right thereto by virtue of a contract, a usage or a statute ; that in this case com- plainant failed to prove any such cDutract, usage or law and that an equity court was therefore without jurisdiction. The case of 612 NEW JERSEY DECISIONS. MuHu V. Illinois. 94 U. S. 113, discussed and distinguished. There tlierc was a (kity owing under a statute, ahhougli it had been enacted subsequent to the erection of the warehouse and establishment of the business. The business was such, however, as was at all times subject to legislative control. Delaware, L. & Ji\ R. R. Co. V. Central Stock Yard & Transit Co., 18 Stew. 50. afT'd 1 Dick. 280. NEW MEXICO LAWS. 613 CHAPTER XXXI NEW MEXICO LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in New Mexico. It took effect June 16, 1909. Laws, New Mexico 1909, Ch. 38. p. 86. Also this volume p. 1. Warehouse scales to be tested — False weights — Penalty: — All scales used for the weighing of property in public ware- houses shall be subject to examination and test by any duly au- thorized public weighmaster, the expense of such tests to be paid by such warehouseman, and no scales shall be used for the weighing of grain or any other article after having been found incorrect, until put in order and found accurate and approved for further use by an authorized public weighmaster, and any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00). An Act establishing weights and measures approved March 17. 1913, Laws New Mexico, 1913, Chap. 82, sec. 29, pages 114, 121. DFXISTONS 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 interests, would take of his own property of a similar kind. Waldo v. Beckwifh, 1 N. Mex. 97. R. Bill of lading — Exemption, effect of: — Where the bill of lading providefl that a carrier should not be liable for losses resulting Note — It seems there are in New Mcxiro no otln-r laws pertaining to warehouse- men. t)14 NEW MFXICd nF.CISIONS. from una\oi(lahle accident, it was licld such an exemption would noi limit or restrict the responsibility or liability imposed by law upon common carriers. Scliijman & Hro. v. .linijo, 1 N. Mex. 45^X NEW YORK LAWS. ^15 CHAPTER XXXII NEW YORK LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act was enacted in its entirety on July 25, 1907. to take efifect October 1, 1907, Laws of New York, 1907, Ch. 732, Vol. 2, p. 1706. With the excep- tion of the last three sections which are omitted, the entire act is embodied in sections 90 to 143 inclusive of chapter 20 of the Consolidated Laws of New York, 1909, being article 9 of the General Business Law. Consolidated Laws of New York, 1909, Vol. 2. p. 1194, Ch. 20, Art. 9. Also this volume p. 1. Incorporation: — Five or more persons may become a cor- poration for the purpose of taking and receiving upon deposit as bailee for safe-keeping and storage, jewelry, plate, money, specie, bullion, stocks, bonds, securities and valuable papers of any kind, and other valuable personal property, and guaranteeing their safety upon such terms and for such compensation as may be agreed upon by it and the respective bailors thereof; and to let out vaults, safes and other receptacles for the uses and purposes of such corporation, by making, acknowledging, and filing in the office of the clerk of the county in which its prin- cipal place of business is to be located, and a duplicate thereof in the office of the superintendent of banks, a certificate stating its corporate name, the business for which formed, the amount of its capital stock, which shall not exceed one million nor be less than one hundred thousand dollars, except in cities or villages of less than one luindred thousand inhabitants, in which the capital shall not be less than ten thousand dollars. — the number of shares of which its stock shall consist the term of its existence not to exceed fifty years, the number of directors who shall manage its concerns for the first year and their names, residences, occu- pations and jjostofficc addresses, and the name of the place in which its operations are to be carried on; such certificate must be approved before filing by the superintendent of banks. No 1)16 NEW YORK LAWS. such corporation shall commence or transact business until the whole amount of its capital stock shall have been paid in nor make any loan or advance on any property left with it for storage or safekeeping. Any such corporation having a capital of one hundred thousand dollars or more, paid in cash, may open and maintain one or more branch offices in the place named in its certificate of corporation, provided, however, that the written approval of the superintendent of banks must be obtained for each liranch so opened and maintained, which written ap- proval may be given or withheld in his discretion. Every safe deposit company shall forfeit to the people of the State the sum of one thousand dollars for every week during which any branch office shall be maintained without such written approval. Con- solidated Laws of New York, 1909, Vol. 1, Banking Law, Ch. 2, Art. 9, Sec. 300. Directors: — The affairs of every such corporation shall be managed by not less than five nor more than thirteen directors, who shall be stockholders and a majority of whom shall be citizens of this State, and who shall, except for the first year, be annually elected by the stockholders at such time and place as shall be prescribed in the by-laws of the corporation. Notice of the time and place of holding such election shall be published not less than ten days previous thereto in a newspaper in the town or city in which the operations of such corporation shall be carried on, and the election shall be made by such of the stock- holders as shall attend for that purpose either in person or by proxy. Id. Sec. SOL Officers and by-laws: — There shall be a president of the corporation to be designated from the directors, and such sub- ordinate officers as the corporation by its by-laws may designate, who may be elected or appointed, and required to give such security for the faithful performance of the duties of their offices as the corporation by its by-laws may require. The direc- tors may make such by-laws as they shall deem proper for the management, disposition of the stock, property and business afTairs of the corporation, not inconsistent with law and pre- scribing the duties of the officers and persons employed by it, the manner of the appointment and election of all officers, and for carrying on all kinds of l:)usiness within the objects and pur- poses of the corporation. /(/. Sec. 302. NEW YORK LAWS. 617 Liability of stockholders: — The stockholders of every such corporation shall be jointly and severally liable for all debts that may be due and owing by it to an amount equal to the par value of their stock in such corporation over and above such stock, to be recovered of the stockholders who were such when the debt was contracted or the loss or damage sustained, or of any sub- sequent stockholder. Any stockholder who may have paid any demand against such corporation, either voluntarily or by com- pulsion, shall have a right to resort to the rest of the stockholders who are liable to contribution ; and the dissolution of the cor- poration shall not release or effect the liability of any stockholder incurred before dissolution. Id. Sec. 303. Remedy for non-payment of rent for safe: — 1. If the amount due for the rental of any safe or box in the vaults of any such corporation shall not have been paid for two years, it may, at the expiration thereof, cause to be sent to the person in whose name such safe or box stands on its books a notice in writing in a securely closed postpaid registered letter, directed to such per- son at his postoffice address as recorded upon the books of the corporation, notifying such person that if the amount then due for the rental of such safe or box is not paid within thirty days from the date of such notice, the corporation will then cause such safe or box to be opened in the presence of its president or secretary or treasurer, and of a notary public not an officer or in the employ of the corporation, and the contents thereof, if any, to be inventoried and sealed by such notary public and be placed in one of the general safes or boxes of the corporation, at the expense of such person, which shall not exceed the original rental of the safe so opened, and for a ])erio(l of not less than two years from the time such safe or ])ox be opened, unless sooner removed by the owner thereof. 2. Upon the expiration of thirty days from the date of mail- ing such notice as aforesaid, and the failure of the person in whose name such safe or box stands on the books of the cor- poration to pay the amount due for the rental thereof, up to the date of such notice, the corporation may. in (he presence of a notary public and of its president or secretary or treasurer, cause such safe or box to be oi)encd. and Ihc contents thereof, if any, to be removed, inventoried and scaled up l)y such notary public in a package, upr)n which such notary puljlic shall distinctly mark the luimc ot the ])crs(.)n in whose lumio sueh safe or box stood on the htuiks oi the coriuiratiou. and the (hUe of the removal of same from sueli safe or box, and wlien sneli package has been so marked for identilication l)y such notary pubhc, it shall, in the presence of the president or secretary or treasurer of the cor- poration, be placed by such notary public in one of the general safes or boxes of the corporation, and thereafter the same shall remain in such safe or box for a period of not less than two years, unless sooner renio\ed by the owner thereof, and such notary i)ublic sludl thereupon, lile with such corporation a cer- tificate under his seal, which shall fully set out, the date of the opening of such safe or box the name of the person in whose name such safe or box stood and a list of the contents, if any. 3. A copy of such certificate shall within ten days thereafter be sent to the person in whose name such safe or box so opened, shall have stood on the books of such corporation, together with a notice that such contents will be kept, at the expense of such person, in a general safe or box in the vaults of such corporation, for a period not less than two years, which copy certificate shall be mailed to such person at his last known postoffice address, in a securely closed postpaid registered wrapper. At any time after the mailing of such certificate and notice, and before the expiration of two years, such person may require the delivery of the contents of such safe as shown by said certificate, upon the payment of all rentals due at the time of the opening of such safe or box. and the cost of opening such box. the fees of the notary public for issuing his certificate thereon, and the payment of all further charges accruing during the period such contents shall remain in the general safe or box of such corporation. 4. After the expiration of two years from the time of mailing the certificate herein ])ro\idcd for, to the person in whose name such safe or box shall have stood at the time of the opening thereof, the said corporation shall cause to be mailed in a securely closed postpaid wrapper, registered and addressed to such per- son at his last known postoffice address, a notice stating that two years have elapsed since the opening of the safe or box and the mailing of the certificate thereof, and that the said corporation will sell .all the ])n)])ertv or articles of \alue set out in said cer- tificate, at a time and suitable ])lace to be stated in such notice, not less than thirty days from the time of mailing such notice, and stating the amount which shall then be due for rental up to NEW YORK LAWS. 619 the time of opening such safe, the cost of opening thereof, and the further cost of safekeeping of all of such contents for the period since the opening of said safe or box. and unless such person shall pay on or before the day mentioned all said sums, and all charges accruing to the time of payment, including advertising, the said corporation shall sell all the property or articles of value set out in said certificate, at public auction, at the time and place stated in said notice, and* a notice of the time and place of such sale shall be published once within ten days prior to such sale, in a newspaper, published in a place where such sale is held. 5. From the proceeds of such sale, the said corporation shall satisfy and deduct thereout all its said charges as stated in said noticTS, together with any further charges that shall have accrued since the mailing thereof, together with all reasonable charges of said notice, advertising, and of the said sale. The balance, if any, of such proceeds shall be deposited by the said corporation, within thirty days after the receipt of the same, with the treasurer or chamberlain of the city, if any, or if none, with the county treas- urer of the county within which such sale was held. There shall be filed with such safe deposit a certificate of the said corpora- tion, stating the name and last known place of residence of the owner of the property sold, the articles sold, the price obtained therefor, that the notice in subdivision four, herein refifuired, was duly mailed and the receipt of the postoflice attached thereto. 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 possession of such officer for a period of ten years, un- claimed by the person legally entitled thereto, it shall be trans- ferred to the general funds of the city or county, and Ijc ai)plicd and used as all other moneys belonging to such city or county. 6. \\'liciic\cr the contents of any such safe or box. so opened as hereinbefore i)rovided, shall consist either wliolly or in part, of documents or letters or other ])apers of a pri\ ale nature, such documents, letters or papers shall not be sold but shall be re- tained I)y such corporation for a ])eriod of ten years from the time of the opening of saifl box, and unless sooner claimed l)y the owner thereof, may after the expiration of such period, be by such corporation destroyed in the presence of an officer of such t>-0 NEW YORK I-AWS. corporation and a notar)- puhlio not an oflicer or in the employ of the corporation. 7. The proceeding provisions hereof do not preclude any other remedy by action or otherwise now existing for the enforcement of the claims of such corporation against the person in whose name such safe or box stood, nor bar the right of such corpora- tion to recover so much of the debt due it as shall not be paid by the proceeds of the sale of the property. Id. sec. 304 as amended by act which took effect June 20, 1911, Laws of New York, 1911, Vol. 1. Ch. 371, p. 851. Lien of safe deposit companies on packages left for safe keeping or storage in vaults, for which receipts are issued: — ■ Whenever any corporation referred to in this article shall take and receive upon deposit, as bailee, for safe keeping and storage, jewelry, plate, money, specie, bullion or other valuable personal property, and shall issue a receipt therefor, such corporation shall as to such property be deemed a warehouseman, and all existing statutes and laws affecting warehousemen, shall apply to such deposits, and such corporation shall have a lien on such deposits or the proceeds thereof in the same manner and with the same effect, and the same shall be enforced in the same manner, as now provided by law with reference to "warehouse- men." Id. Sec. 305 as amended by act which took effect June 21. 1911, Laws of New York, 1911, Vol. 1, Ch. 382, p. 868. Factors' act: — ^Every factor or other agent, intrusted with the possession of any bill of lading, custom-house permit, or warehouseman's receipt for the delivery of any merchandise, and every such factor or agent not having the documentary evidence of title, who shall be intrusted with the possession of any merchandise for the purpose of sale, or as a security for any advances 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 obligation in writing given by such other person upon the faith thereof. 2. Every person who shall hereafter accept or take any such merchandise in deposit from any such agent, as a security for any antecedent debt or demand, shall not acquire thereby, or NEW YORK LAWS. 621 enforce any right or interest in or to such merchandise or docu- ment, other than was possessed or might have been enforced by such agent at the time of such deposit. 3. Nothing contained in the preceding subdivisions of this section shall be construed to prevent the true owner of any merchandise so deposited, from demanding or receiving the same, upon prepayment 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 sale thereof, after satisfying the amount justly due to such person by reason of such deposit. 4. Nothing contained in this section shall authorize a common carrier, warehouseman, or other person to whom merchandise or other property may be committed for transportation or storage only, to sell or hypothecate the same. Consolidated Laws of New York, 1909, Vol. 4, Personal Property Law, Ch. 41 Art. 3, Sec. 43. Liability of certain corporations to tax: — If a foreign execu- tor, administrator or trustee shall assign or transfer any stock or obligations in this state standing in the name of a decedent, or in trust for a decedent, liable to any such tax, the tax shall be paid to the state comptroller or the treasurer of the proper county on the transfer thereof. No safe deposit company, trust company, corporation, bank or other institution, person or per- sons having in possession or under control securities, deposits, or other assets belonging to or standing in the name of a deced- ent who was a resident or non-resident, or belonging to, or standing in the joint names of such a decedent and one or more persons, including the shares of the capital stock of, or other interests in the safe deposit company, trust company, corpora- tion, bank or other institution making the delivery or transfer herein provided, shall deliver or transfer the same to the execu- tors, administrators or legal representatives of said decedent, or to the survivor or survivors, when held in the joint names of a decedent and one or more persons, or upon their order or request, unless notice of the time and place of such intended delivery shall personally be served upon the state comptroller at least ten t^-- NEW ^•()KK LAWS. ila\s prior to said dclixory or transfer; lutr sliall any safe deposit conipanv. trust company, ctirpt)ration, Itank or other institution, person or persons deliver or transfer any securities, deposits or other assets liclons^inq' to or standing in the name of a decedent, or belonging to, tir stanchng in the joint names of a decedent and one or more persons, including the shares of the capital stock of, or other interest in. the safe deposit company, turst company, corporation, bank or other institution making the delivery or trans- fer. witlu)ut retaining a sufficient portion or amount thereof to pay any tax and interest which may thereafter be assessed on account of the delivery or transfer of such securities, deposits, or other assets, iiichuling the shares of the capital stock of, or other interests in, the safe deposit company, trust company, cor- poration, liank or otlier institution making the delivery or trans- fer, under the ]:)rovisions of this article, unless the state comp- troller consents thereto in writing. And it shall be lawful for the said state comi^troller, personally or by representative, to ex- amine said securities, deposits or assets at the time of such de- livery or transfer. Failure to serve such notice or failure to allow such examination or failure to retain a sufficient portion or amount to pay such tax and interest as herein provided shall render said safe deposit company, trust company, corporation, bank or other institution, person or persons liable to the pay- ment of the amount of the tax and interest due or thereafter to become due upon said securities, deposits or other assets, in- cluding the shares of the capital stock of, or other interest in, the safe deposit company, trust company, corporation, bank or other institution making the delivery or transfer, and in addition thereto, a penalty of not less than five or more than twenty-five thousand dollars ; and the payment of such tax and interest there- on, or of the penalty above prescribed, or l)oth, may be enforced in an action brought by the state comptroller in any court of competent jurisdiction. Consolidated T.aws of New York, 1909, Vol. 5. Tax Law Ch. 60, sec. 227. Above section construed — Contents of rented safe not "in possession or under control" of safe deposit company: — A safe depfjsit company rented a safe which was recorded on its books in the name of "Russell Sage or Charles W. Osborne" who were to severally have access to the same. Osborne's right of access was to be uninterrupted in the event of the death of Sage. After Sage's death Osborne's use of the safe continued as before NEW YORK LAWS. 623 and the company did nothing to prevent Osborne from removing the contents of the safe and it gave no notice of any kind to the State Comptroller. An action was brought by the Comptroller in the name of the people of the state against the safe deposit com- pany to enforce the penalty of one thousand dollars as provided in the above section as it stood on July 22. 1906. (Laws N. Y. 1905, Vol. I, Ch. 368) and prior to the amendment of 1908 (Laws X. Y. 1908. Vol. L Ch. 310). A judgment was entered upon a verdict in favor of the defendant and the state appealed to the Appellate Division. In affirming such judgment that court held it was not necessary to resort to the rule of strict construction applicable in cases of penal statutes because here clearly the de- fendant did not have "in possession or under control" the con- tents of the safe in question and hence the section was not appli- cable and therefore imposed no duty upon the defendant; that defendant could not have obeyed the statute without invading the legal rights of its customer. The court further held that the status of the parties bore a close analogy to that arising from the relation which exists between the tenants of a general office building and the landlord thereof, who keeps within his control and under his care and protection, the common means of access to the building and to the suites of offices therein, but as to which, subject to any regulations that may have been established by the landlord, the rights of the tenants are exclusive. People of State of New York by Glynn, Comptroller, v. Mercantile Safe Deposit Co., 143 N. Y. Supp". 840. Note — A statute, the same as that under which this case was brought, held to be constitutional in Illinois. -National Safe Deposit Co. v. Stead, 250 111. 584. See also this volume, Illinois Decisions, page 202. Cold Storage amendment: — By cliaptcr 335 of the laws of 1911, chapter 45 of the Consolidated Laws of 1909, lieing an act in relation to the public health, is amended by adding after the 16th section thereof the following nine sections : Laws New York, 1911. Vol. 1. Ch. 335. p. 774. Sec. ?i35. Definitions. The term food as used in this article shall include any article, except nuts, fruits, cheese and vegetables, used for food by man or animal and every ingredient of such article. Sec. 336. Cold storage food to he marked. It shall hereafter be imlawful for any ])ersf)n or persons, corporation or corpora- 624 NEW YORK LAWS. tioiis, engagcHl in llic business of culd storage warehousemen or in the business of refrigerating, to receive any kind of food unless the said food is in an apparently pure aiul wholesome condition, :\m\ the food or the package containing the same is branded, stamped or marked, in some conspicuous place, with the day, month and year, when the same is received in storage or re- frigeration. It shall be unlawful for any person or persons, corporation or corporations, engaged in the business of cold storage ware- housemen or in the business of refrigerating to permit any article of any kind whatsoever used for food in the possession of any person or persons, corporation or corporations, engaged in the business of cold storage warehousemen or refrigerating, to be taken from their possession without first having branded, stamped or marked on said food stuffs or the package containing same, in a conspicuous place, the day, month and year, when said food stuffs or package was removed from cold storage or refrigeration. License to be secured : — On and after the first day of Octo- ber, nineteen hundred and thirteen, no person or persons, firm, corporation or corporations other than those engaged solely and exclusively in the business of storing nuts, fruit, cheese or vege- tables only, shall operate a cold storage or refrigerating ware- house without a license to be issued by the state department of health. Any person or persons, firm, corporation or corporations desiring such a license shall make written application to the de- partment on or before the first day of September, nineteen hun- dred and thirteen, stating the location of its plant or plants. On receipt of the application the department shall cause an examina- tion to be made into the sanitary condition of such plant or plants and if they are found to be in a sanitary condition and otherwise properly equipped for the business of cold storage, the department shall cause a license to be issued authorizing the applicant to operate a cold storage or refrigerating warehouse for and during the period of one year. The license shall be issued upon pay- ment by the applicant of a license fee of twenty-five dollars to the state treasurer. On or before the first day of September in each subsequent year all person or persons, firm, corporation or corporations, engaged in the business of cold storage or refriger- ating warehousing, shall make a renewal application to the state department of health, stating the location of its plant or plants. NEW YORK LAWS. 625 If the state department of health is satisfied that the plant or plants continue in a sanitary condition and are otherwise prop- erly equipped for the business of cold storage, the department shall on or before the first day of October in each subsequent year issue a renewal license for one year on the payment of the license fee of twenty-five dollars. Should any person or persons, firm, corporation or corporations, desire to begin the business of cold storage or refrigerating warehousing after the first day of Oc- tober, nineteen hundred and thirteen, it or they shall file an application with the state department of health stating the loca- tion of its plant or plants, and the state department of health after an examination on payment of the license fee may then issue a license to such applicant, for a period up to and includ- ing the first day of October next following. In the event that any warehouse licensed under the provisions of this section, or any portion thereof, shall be deemed by the state department of health to be conducted in an unsanitary manner, it shall be the duty of the department to close such warehouse, or portion there- of, until it shall be put in satisfactory condition, and the depart- ment shall have power also to suspend the license in case the needed changes shall not be made within a reasonable time. An Act to amend the Public Health Law in relation to cold storage. Took effect May 16, 1913, Laws New York, 1913, Vol. 3, Chap. 560, page 1537. Sec. 337. Time that cold storage foods may be kept. It slxall hereafter be unlawful for any person, corporation or corpora- tions, engaged in the business of cold storage warehousemen or refrigerating, to keep in storage for preservation or otherwise any kind of food or any article used for food a longer period than ten calendar months, excepting butter products which may be kept in said cold storage or refrigeration twelve calendar months. Sec. 338. Powers of state commissioner of health. The state commissioner of health is hereby vested with full power and authority to inspect and supervise all places in this State now used or hereafter to be used for cold storage or refrigerating purposes ; the state commissioner of health or his duly authorized agents or employees shall be permitted access to such place or places and all parts thereof at all times for the purpose of seeing that said place or places arc kept and maintained in a clean and 40 (V2(5 NRW V(MU< LAWS. sai)itar\- manner, and for the i»nri)()sc of (Ictcrniinins;- whether or not the in'ovisions oi this arliele or any other aet relating to fooil stuffs are l)ein^- eonii)liecl with. I'he power of supervi- sion herehv jj^ranted shall e.xtend to ena])le the state eommissioner of health to adopt sueii reasonable rules and regulations as may be determined upon from time to time as essential to the proper proteetion of the eonsunier of the commodities kept and pre- served in such place or places, and the state commissioner of health may appoint and designate from time to time such person or persons as he deems lit for the purpose of making such inspections. Food to be condemned: — The state commissioner of health may seize and condemn any articles of food in cold storage ware- houses which are found to be unfit for use and such articles of food shall be destroyed or otherwise disposed of under such con- ditions as the state commissioner of health may prescribe. An Act to amend the Public Health Law in relation to cold storage. Took effect May 16, 1913, Laws New York, 1913, Vol. 3, Chap. 506, page 1538. Sec. 339. Reports of imrehouscmen. All persons or corpora- tions engaged in the business of cold storage warehousemen, or in the business of refrigerating, shall submit reports to the state department of health, upon printed forms to be provided by said state department of health, setting forth in itemized particu- lars the quantity of each and every foodstuff in storage or in the control of said person or persons, corporation or corpora- tions ; said report shall be filed on or before the twenty-fifth day of January, May and September of each year, and reports so rendered shall show conditions existing upon the first day of the month in which said report is filed. Sec. 339 a. Transfers from one zvarehouse to another. The transfer of any food from one cold storage or refrigerating ware- house to another for the purpose of evading any provisions of this article is hereby prohibited. Sec. 339 b. Prohibits return of food to cold storage zvhen once released for purpose of placing same on market for sale. When food has been in cold storage or refrigeration and is released therefrom for the purpose of placing the same on the market for sale, it shall be a violation of the provisions of this article to again place such food in cold storage or refrigeration. NEW YORK LAWS. 627 Sec. 339 c. Prohibits sale of food kept in cold storage zvitli- out representing said fact. It shall be a violation of the pro- visions of this article to sell any article or articles of food that have been kept in cold storage or refrigeration, without repre- senting the same to have been so kept. Sec. 339 d. Penalties. Any person or persons, corporation or corporations, or officer or officers thereof, violating any of the provisions of this article shall be guilty of a misdemeanor. The conviction of any corporation shall not operate to relieve any officer or officers, agents or employees of such corporation from prosecution under the provisions of this article. Enforcement of liens on personal property by sale — Sale of personal property to satisfy a lien: — A lien against personal property, other than a mortgage on chattels, if in the legal pos- session of the lienor, may be satisfied by the public sale of such property according to the provisions of this article. Consolidated T.aws of N. Y. 1909, Vol. 3, p. 2166, Lien Law. Ch. 33, Art. 9. sec. 200. 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 dili- gence be found within such county, then such notice shall be served by mailing it to him at his last known place of residence, or to his last known postoffice address. A like notice shall be ser\'ed 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 following facts ; First, the nature of the debt or the agreement under which the lien arose, with an itemized statement of the claim and the time when due; second, a brief description of the per- sonal property against which the lien exi.sts; third, the estimated value of such property; fourth, the amount of such lien at the date of the notice. It shall also require such owner or person to pay the amount of such lien on or before a day mentioned therein, not less than ten days from the service 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 (i'2S NEW YORK LAWS. is hascil proviilcs ior the ooniimiDUs care of property the lienor is also entitled to receive all sums which may accrue under the agreement, subsequent to the notice and jirior 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 pro- perty 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 knowledgt and belief. Id. sec. 201. Sale to be advertised:— Each sale of personal property to satisfy a lien thereon shall be at public auction to the high- est 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 published 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 publication; 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. 202. 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 pay- ment in serving the notice and advertising the sale as required in this article. Upon making such payment, the owner of such property is entitled to the possession thereof. Id. sec. 203. Disposition of proceeds: — Of the proceeds of such sale, the lienor shall retain an amount sufficient to satisfy his lien and the expenses of advertisment and sale. The balance of such pro- ceeds, if any, shall be held by the lienor subject to the demand of the owner, or his assignee or legal representative, and 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 the owner or his assignee or legal representative NEW YORK LAWS. 629 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 supervisor of the town where such sale is held. There shall be filed with such deposit the affidavit of the lienor, stating the name and place of residence of the owner of the property sold, if known, the article sold, the prices obtained therefor, that the notice required by this article was duly served and how served upon such owner, and that such sale was legally and how ad- vertised. 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 possession of such officer for a period of five years, unclaimed by the 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. 204. Remedy not exclusive: — The preceding provisions of this article do not preclude any other remedy by action or otherwise, now existing, for the enforcement of a lien against personal property, or bar the right to recover so much of the debt as shall not be paid by the proceeds of the sale of the property. Id. sec. 205. Enforcement by action; v^^hen and in what courts: — An action may be maintained to foreclose a lien upon a chattel, for a sum of money, in any case where such a lien exists at the com- mencement of the action. The action may be brought in any court, of record or not of record, which would have jurisdiction to render a judgment, in an action founded upon a contract, for a sum equal to the amount of the lien. Id. sec. 206. Warrant to seize chattel; proceedings thereupon: — Where the action is brought in the supreme court, the city court of the city of New York, or a county court, if the plaintiflf is not in possession of the chattel, a warrant may be granted by the court, or a judge thereof, commanding the sheriff to seize the chattel and safely keep it to abide the final judgment in the action. The provisions of title third of chapter seven of the code of civil procechirr apply to such warrant, and to the proceedings to n;W \i:\V NdKK T.WVS. procure it. ami after it has been issued, as if it was a warrant of attachment, except as otlierwise expressly prescribed in this article. Id. Sec. 207. Judgment: In an action brought in a court specified in the last section, final judgment, in favor of the plaintiff, must specify the amount of the lien, and direct a sale of the chattel to satisfy the same and the costs, if any, by a referee appointed thereby, or an officer designated therein, in like manner as where a sherifif sells personal property by virtue of an execution; and the ap- plication by him of the proceeds of the sale, less his fees and expenses, to the payment of the amount of the lien, and the costs of the action. It must also provide for the payment of the surplus to the owner of the chattel, and for the safe keeping of the surplus, if necessary, until it is claimed by him. If a defendant, upon whom the summons is personally served, is liable for the amount of the lien, or for any part thereof, it may also award payment accordingly. Id. Sec. 208. Action in inferior court :— Where the action is brought in a court, other than one of those specified in section two hundred and seven, if the plaintiff is not in possession of the chattel, a warrant, commanding the proper officer to seize the chattel, and safely keep it to abide the judgment, may be issued, in like manner as a warrant of attachment may be issued in an action founded upon a contract, brought in the same court; and the provisions of law, applicable to a warrant of attachment, issued out of that court, apply to a warrant, issued as prescribed in this section, and to the proceedings to procure it, and after it has been issued; except as otherwise specified in the judgment. A judgment in favor of the plaintiff, in such an action, must correspond to a judgment, rendered, as prescribed in the last section, except that it must direct the sale of the chattel by an officer to whom an execution, issued out of the court, may be directed; and the payment of the surplus, if its safe keeping is necessary, to the county treasurer, for the benefit of the owner. Id. Sec. 209. Application: — Sections two hundred and six to two hundred and nine inclusive do not affect any existing right or remedy to foreclose or satisfy a lien upon a chattel, without action; and they do not apply to a case, where another mode of enforcing a lien upon a chattel is specially prescribed by law. Id. Sec. 210. NEW YORK LAWS. ^^^ Fees and charges for elevators and warehouses: — The maxi- mum charge for elevating, receiving, weighing and discharging grain by means of floating and stationary elevators and ware- houses 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 vessels or propellers, the ocean vessels or steamships and canal boats shall only be required to pay the charge of trimming or shoveling 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 any other mechanical power, in connection with any floating or stationary elevator, shall not exceed the sum of one dollar and fifty cents for each one thousand bushels elevated. For every violation of any provision of this section, the person com- mitting such violation shall forfeit to the people of the State the sum of two hundred and fifty dollars. A person injured by a violation of this section may recover any damages sustained from the person violating the same. Consolidated Laws of New York, 1909, Vol. 2, General Business Law, Ch. 20, Art. 26, Sec. 396. 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. Consolidated Laws, N. Y.. 1909, Vol. 4, Penal Law, Cb. 40. Art. 40. Sec. 432. Above act held to be constitutional: — The above act held to be a constitutional exercise of the police power of the State; that the business of elevating grain was one "aflfected with a public interest" and that therefore the legislature had a right to prescribe the maximum rates which might be charged for storage. People v. Bndd, 117 N. Y. 1, afif'd 143 U. S. 517. (For complete collection of cases on the above see New York Deci- sions, pages 675 and 676.) Demand loans of five thousand dollars and upwards, on collateral, may bear any interest: — In any case hereafter in which ach'anccs of money, repayable on demand, to an amount not less than \\\32 NEW VOKK I>I-X1S1()NS. deposit, bills of cxchanj^^e, bonds or other negotiable instruments pledged as collateral security for such repayment, it shall be lawful to receive or to contract to receive and collect, as com- pensation for making such advances, any sum to be agreed upon in writing, by the parties to such transaction. Consolidated Laws, N. Y., 1909, Vol. 2, General Business Law, Ch. 20, Art. 25, Sec. 379. DECISIONS AFFECTING WAREHOUSEMEN B. Ordinary care — Definition — Question of fact: — A warehouse- man is bound to exercise ordinary care and diligence in respect to the property intrusted with 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 prop- erty or afifairs. 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. N. 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 & Root, 9 Wend. 60; Titts- ivorth V. Winnegar, 51 Barb. 148; Foote v. Storrs, 2 Barb. 326; Schmidt & Webb v. Blood & Green, 9 Wend. 268; Schwertn et al. V. McKie et al., 51 N. Y. 180; Liverpool & Great Western Steam Co. v. Suifter et al.. 17 Fed. Rep. 695; Kaiser v. Latimer, 9 App. Div. 36. Same — Facts constituting lack of: — A statement that the build- ing was "an absolutely fireproof building" held to constitute a y^rz — For art: enlilled "An act to improve the water front facilities of the city of New York, in relation to the receipt, delivery and shipment of freight" which took effect July 25. 1911, see Laws of New York, 1911, Ch. 776, p. 2058. See Ch. 778 in same volume for "An act to amend the transportation law by adding thereto an additional article. lOa, providing for the incorporation of freight terminal com- panies." See also Forest, Fish and Game Law, Consolidated Laws of New York, 1909, Vol. 2, Ch. 19. , , , ■. Among the powers conferred upon cities by "An Act to amend the general city law, in relation to the powers of cities," Chap. 247, T,aws of New York, 1913, is the following: r ., •, j , To control and administer the water front and waterways ot the city and to establish, maintain, operate and regulate docks, piers, wharves, warehouses and all adjuncts and facilities for navigation and commerce and for the utilization of the water front and waterways and adjacent property. Laws New York, 1913, Vol. 1, Chap. 247, Sec. 20, par. 8. NEW YORK DECISIONS. 633 false representation, and old rags, burlap and excelsior, being in an old van near the elevator shaft was evidence from which might be inferred lack of care on the part of the warehouseman. Judgment for defendant reversed. Clifford v. Universal Storage Warehouse & Express Co., 102 N. Y. S. 460. 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 return 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 by 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 warehouseman rebuts this presumption. Arent v. Squire, 1 Daly, 347; Reed v. Crowe et al, 13 Daly, 164; Williamson v. .V. F., A^. H. & H. R. R. Co., 22 St. Rep. 431 ; Lynch v. Kluber, 20 Misc. Rep. 601 ; Draper v. D. & H. C. Co., 118 N. Y. 118. Same — Same — Receipt stating goods "In good condition" — Warehouseman liable, when: — Evidence showed warehouseman gave receipt for plaintiff's goods to a transfer company, in which it was stated the goods were "In good condition." Subsequently plaintiff found his goods on the sidewalk in front of defendant's warehouse in a damaged condition. On appeal a judgment against the transfer company was reversed and a judgment against the warehouseman was affirmed. Neville v. Woolverton, \A2 N. Y. S. 292. li'arehouseman — Liability for goods lost or stolen: — Ware- hou.scman held liable for goods stolen although not "stored" in a technical sense, viz.. delivery to respondent as a warehouseman and warehouse receipt issued. The carrier had the right to use a room to place goods therein and respondent iiatl undertaken for hire to watch and care for room. Evans v. N. V. fr P. S. S. Co., 163 Fed. 40.S. When warchousonan liable as common carrier- — Assuming to act as carrier — Termination of contract of storage: — A ware- 634 N'KW VOKK Dr.riSTONS. houscnian luui stored plaintiff's goods and tlie term for which they were stored liaving expired she thereupon paid all the storage charges due and surrendered the contract. Plaintiff then engaged the defendaiU warehouseman to remove the goods from his warehouse and take them to her home. Subsequently and while in the warehouse before being removed, the goods were destroyed by fire. Held that the contract of storage had terminated and that the defendant was liable as a carrier and hence as an insurer of the goods. Snelling v. Ycttcr, 25 App. Div. 500; W'adc v. f r heeler, 3 Lans. 201, aff'd 47 N. Y. 658. Delivery — Of ke\: — The delivery 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 nntJioiit authority — Warehouseman liable for freight charges — Conversion: — Where a common carrier stores freight with a warehouseman, the possession of the ware- houseman 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 conversion of the goods. Compton v. Shaw, 1 Hun, 441 ; JVilliard 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 plaintiff 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. Tt was contended in behalf of the defendants that independent of any agency on the part of the wife, that be- cause at common law a wife's possession of a chattel was deemed the possession of her husband, the delivery of the bonds to her was equivalent to a delivery to the plaintiff. It was held that this contention could not be sustained; that the bonds had been obtained fraudulently and that the defendants were liable there- for. 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 would be equivalent to enforcing a right of action against the plaintiff alone for a tort committed wholly by his wife. Kotving v. Manly et al., 49 N. Y. 192. NEW YORK DECISIONS. 635 Same — Improper delivery to husband — Conversion: — A large quantity of jewelry was deposited with the defendant by 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." Subsequently the defendant deliv- ered 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 husband of the plaintiff con- stituted 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 plaintift"'s evidence showed that an expressman had left the trunk at the defendant's warehouse. On cross-examination the expressman 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 defend- ant'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 delivery for the purpose of charging ware- houseman upon his failure to return the trunk u[)on plaintiff's demand. Testimony given 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. Bailment — Limitation of liability — J Then void: — Plaintiff de- posited handbag with defendant for safe keeping at its parcel room and received a jjrinted card board coujion containing among other recitals a limitation of liability for $10 for loss or damage. IMaintiff's attention was not called to this provision. Held, that the limitation was void. Ilealy v. N. V. ('. ^"^ //. R. R. Co., 138 N. Y. S. 287. Cannot deny bailor's title: — .\ warehouseman having received property from the plaintiff will not be permitted to defeat his tv^G NF.W M)KK rtF.rTSTONS. riglu to its return In altoiiiiniiio- to interpose the el;iiin of owner- ship in a third person. Lconclni v. Post, ?)7 St. Rep. 255; Gruel V. Yettcr, 27 Misc. 494; MnUins v. Chickcriny, 110 N. Y. 514; Transportation Co. v. Barber, 56 N. Y. 547; JJ'heeler v. Lawson, 103 X. Y. 40: /^ro.sV v. .l/o//, 34 N. Y. 253. Same — Ulicn true oivner may maintain action for goods stored bx his agent:— \ commission merchant stored certain goods and guaranteed payment of the storage charges, the warehouseman being aware that the title thereto was in other persons. Held that the true owner of the goods was entitled to recover their value when the goods were destroyed by the fault or misconduct of the warehouseman. O'Connor v. Moody, 90 App. Div. 440. Conversion — IVrongful 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 required 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 — Facts constituting: — Plaintiff's goods were taken by the marshal and placed with the defendant, who admitted receiv- ing them. When plaintiff called to see them and wanted them he was told they were in another warehouse and could not be delivered just then. Plaintiff was also told they were there, to leave his name and address and defendant would communicate with him. No communication was received. Later, plaintiff recognized a part of the goods at an auctioneer's and when he reported the facts, was told it was not possible that they were his goods. Facts held to constitute a demand and an unreason- able delay sufficient to predicate an action for conversion. Lissner v. Cohen, 97 N. Y. S. 227. Same — Refusal to deliver to true owner — Time for investiga- tion 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 entitled to a reasonable time in which to investi- gate. An unqualified refusal to deliver held to constitute a conversion. Rogers v. Wier, 34 N. Y. 463. NEW YORK DECISIONS. 637 Same — Tender of charges must be proven: — In order to re- cover from a warehouseman in an action for conversion, it must appear that the plaintiff was ready and willing to pay the charges against the goods. In this case the claimant was not identified and did not afford the warehouseman "a reasonable time to ascer- tain the validity of the adverse claim." Judgment for plaintiff reversed and new trial ordered. Zuber v. Mehrle, 112 N. Y. S. 1093. Warehouseman guarantor of advances — Entitled to subroga- tion: — 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 subrogated to all the rights of such third party in the goods. Kilpatrick v. Dean et al., 3 N. Y. S. 60, aff'd 15 Daly, 182. Same — Judgment for storage charges, not a bar to an action for conversion: — In an action against a warehouseman for con- version of certain wood stored with him. it was held that a judg- ment procured by the defendant against the plaintiff for storage charges was not a bar to this action, the record of the proceed- ings before the justice who tried the case not showing that the wood in question had been delivered to the owner. Merritt v. Peirano, 10 App. Div. 563. Change of proprietorship of zvarehouse — Request upon de- positor to withdrazv 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. vSubsequently the warehouse was taken possession of l)y the plaintiff, who assumed all outstanding con- tracts of storage. Tliereafter, 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 allowed the wood to remain in the warehouse, offering to pay the market rale 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 w'f>()(\ as requested, that this terminated the contract of stor- age but that the plaintiff would be entitled only to recover what- ever the market rate for such storage might he shown to l)c at that time and not tiie exorbitant charge claimed by the plaintiff. <>38 NEW VOUK DECISIONS. Further held that iilainlilT was not hound [o retain the property after the contract of storage was terminated hy liis notice hut tliat lie would have heeu justilied in renio\ in*^ it after that date and depositing; it in a warehouse at the risk and expense of the owners suhject to an\- lien he niiti^ht have prior to the removal. Haccltinc et al. v. //■<■/(/ ct al.. 7o N. Y. 156. Sattie — Several liability — Holding in official capacity no de- fense: — The defendant took possession of and operated a ware- house in which the plaintiff's goods were stored, and during the term of such storage the goods were injured. It was held that he was severally liahle to the owner of the goods although the ware- house company which had previously operated the warehouse was a defendant also. As the injury happened while he was in possession he was liahle for the same. The defendant attempted to show that he was not liable on the ground that he held and conducted the warehouse 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. People's Cold Storage, 10 Misc. 553; Kaufman v. Morgan, 10 Misc. 554. Same — What sufficient to make prima facie case: — The de- fendant company took possession of a warehouse formerly operated by another firm and notified all the depositors that the customers would in no way be aflfected by the change in owner- ship. The plaintiiT had deposited goods in the warehouse prior to this change, but upon receiving the goods from warehouse- man found that they were damaged. In an action for the value thereof, it was held that the plaintiff made out a prima facie case against the defendant by showing delivery to the former owner and the damaged condition when received, and that it was error to dismiss the case upon this showing. Isler ct al. v. Linds Co., 67 N. Y. S. 1072; Smith v. Railroad Co., 43 Barb. 225, afif'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 warehouseman 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 NEW YORK DECISIONS. 639 showing that they were taken from his possession without any fault on his part. Coleman v. Livingston, 4 J. & S. 32; Burnell V. A^. Y. & C. R. R. Co., 45 X. Y. 184. But see Claflin ct al. v. Meyer, 75 N. Y. 260. C. Safe deposit boxes — Property in subject to attachment: — The property of a debtor in a safe deposit box is simply deposited for safe keeping and the sheriff may enter the same to make a seizure required by law, in the execution of process in his hands. United States V. Graff, 67 Barb. 310. Same — Contents of not "in possession or under control" of safe deposit company: — A safe deposit company rented a safe which was recorded on its books in the name of "Russell Sage or Charles W. Osborne" who were to severally have access to the same. Osborne's right of access was to be uninterrupted in the event of the death of Sage. After Sage's death Osborne's use of the safe continued as before and the company did nothing to prevent Osborne from removing the contents of the safe and it gave no notice of any kind to the State Comptroller. An ac- tion was brought by the Comptroller in the name of the people of the state against the safe deposit company to enforce the pen- alty of one thousand dollars as provided in the section 227 of the Tax Law as it stood on July 22, 1906. (Laws N. Y., 1905, Vol. I, Ch. 368) and prior to the amendment of 1908 (Laws N. Y., 1908, Vol. I. Ch. 310). A judgment was entered upon a verdict in favor of the defendant and the state appealed to the Appellate Division. In affirming such judgment that court held it was not necessary to resort to the rule of strict construction applicable in cases of penal statutes because here clearly the defendant did not have "in possession of under control" the contents of the safe in question and hence the section was not applicable and there- fore imposed no duty upon the defendant ; that defendant could not have obeyed the statute without invading the legal rights of its customer. The court further held that the status of the part- ies bore a close analogy to that arising from the relation which exists between the tenants of a general office building and the landlord thereof, who keeps within his control anfl under his care and protection, the common means of access to the building and to the suites of offices therein, but as (o which, subject to any regulations that may have been established by the landlord, the 640 NEW YORK DECISIONS. rights of the tenants are exclusive. People of State of New York by Gly)iii. coniptrollei-, v. Mercantile Safe Deposit Co., 143 N. Y. Supp. 849. Note — A st.Ttutc, the same as that under which this case was brought held to be constitutional in lUinois. National Safe Deposit Co. v. Stead, 250 111. 584. See also this volume, Illinois Decisions, page 202. F. Carrier — Continuing liability — JVarehoitseman liable in ad- miralty: — A .steani.ship company having the right to use the pier, adjacent bulkheads, and a room in the warehouse of one B, placed therein certain rul)ber the company had transported. The room and wharf were under the care of B's servants. Between Saturday and Monday a considerable quantity of the goods dis- apeared and presumably were stolen. Under the terms of the bill of lading the company had the right, under certain conditions, to store the property for the acccnmt and risk of plaintiff. Held: that the company had not stored the property for ac- count of plaintiff and had done nothing to change or terminate its carrier's liability. Also held as B had undertaken for hire to watch and care for the room outside of business hours, that he was liable both to the carrier and to the owner. Libel re- tained against B under Admiralty Rule 59 on the ground that B was bound to indemnify any one liable in admiralty. Evans v. A^. Y. & P. S. S. Co., 163 Fed. 405. Claim of title by a third person — Warehouseman not entitled to equitable relief — Interpleader: — The complainant, a warehouse company, filed a bill in equity alleging that various persons claimed title to a large quantity of arms stored with it and also that there were charges for storage due for which the com- plainant had its lien thereon. The bill prayed that all parties thereto be restrained from further proceedings and that they be compelled to interplead. The court held that the motion of the complainant for an injunction pendente lite must be denied on the ground that he had no right to maintain an action of inter- pleader 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. 257; Craw- shay V. Thornton, 2 Mylne & C. 1. Conversion — Asserting warehouseman's lien — Will not sustain charge of wilfid injury to property: — In an action for conver- NEW YORK DECISIONS. 641 sion, the complaint alleged that the defendant refused to deliver certain personal property, she claiming a warehouseman's lien thereon. Held: that the complaint did not charge wilful injury to property within the meaning of Code of Civil Procedure, sec. 556, and that she was not liable to arrest. Therefore upon her prevailing in the suit, the plaintiff was not liable to a body execu- tion. Allen V. Fromme, 195 N. Y. 404. Interpleader — Proper remedy — JJlie}i: — Action for interplead- er held to be proper remedy for warehouseman where he holds goods claimed by different parties. Manhattan Storage & Ware- house Co. V. Benguiat Art Museum, 139 N. Y. S. 1073 citing Beebe v. Mead 101 App. Div. 500. G. Government bonded ivarehouse — 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 under the terms of the Act of Congress pertaining to bonded ware- housemen (10 U. S. Stat, at L. p. 270). It was held that the provision of this statute stating that the goods were held at the owner's risk applied only to the United States government and not to the warehouseman, it not being 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 et al., 51 N. Y. 180. Same — Statute requiring withdrazval zvithin one year — Effect of such zvithdrazval zvhen negotiable zvarehouse receipt outstand- ing — One taking receipt after the expiration of the year not a bona fide holder: — The defendants, who conducted a bonded warehouse, delivered to a depositor a negotiable receipt for a large quantity of whiskey which was stored therein. In the receipt it was stated that the whiskey was deliverable to the bearer only after the payment in cash of the short price, the government tax and storage charges. On the back of the receipt there was a copy of the .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 41 G42 NEW VOKK DECISIONS. Statutes of llio United States eoiulitioned that they would pay the tax on the whiskey as speeilied on the entry, l)eforc removal from llie distillery warehouse and within one year from the date of the bond. A year thereafter the defendants shipped the whiskey to the depositor. It subsequently appeared that this depositor had indorsed the reeeipt after the expiration of the year to the plaint ilT who brout^ht an action for conversion against the defendant warehouseman. Upon the above stated facts, it was held that the warehouseman was not liable ; that the plaintiff when he took the warehouse 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 Revised Statutes of the United States to hold the whiskey after the expiration of the year and that the plaintiff was chargeable with knowledge of this statute. An examination of the receipt would have shown the plaintifif 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. Ciirley et al., 86 N. Y. 187. Same — Representation 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. afif'g Same v. Same, 16 N. Y. Supp. 107. Sayne — Sureties on bond — Discharge by postponement of sale —Principal liable:— By the Revised Statutes of the United States (12 Stat, at I., p. 293) goods left in a United States government bonded warehouse are deemed to be abandoned after three years, if all taxes and penalties due thereon are not paid. The regula- tions of the Treasury Department provide that such goods shall be sold on a certain day after the expiration of said three years. Where the Secretary of the Treasury issued an order postponing such sale and afterward the United 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 relased. Such postponement of sale had precisely 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 NEW YORK DECISIONS. 643 place on the day specified in the Treasury regulations; a post- ponement thereof will increase the amount for which he is liable and for which he must look to his principle. With regard to the principal, the case is different. He is liable for the whole duties as importer without limitation of time and irrespective of the goods held as security. United States v. De 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 period 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 l^arrels in his possession, the ware- house 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 plaintiff 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 evidence that the defendant had paid a certain sum in cash on account of such storage charges at the time the agree- ment was made. It was held that allnc—Mitst sell (/oods icitliiii a rcasoiiahlr time after expira- tion of the year: — After there has heen a default in the payment of storage eharges and one year has elapsed, a warehouseman must sell the goods for sueh charges within a reasonhle time. He has no right to keep the goods for an indefinite period, allow- ing his charges to increase. Although the statute is not manda- tory and does nc^t re([uire 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. Therefore, a warehouseman cannot unreasonably neglect to avail himself of his rights of sale after the same has accrued. Morgan v. Murtha, 18 Misc. 438, reversing Same v. Same, \7 Misc. 292. Same — Right to retain undelivered portion of goods for storage due on entire lot: — A warehouseman has a lien upon goods re- maining 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, Lazvs of 1885, construed:— Ey 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 lien to all legal demands fcjr 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 charges which he may have against the owner of such goods for storage or for money advanced for the pur- poses specified 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., 139 Mich. 104; 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: — Where one mortgaged his furniture. NEW YORK DECISIONS. 647 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 lien of the former was superior to that 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 lien 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 warehouseman a lien upon goods belonging to another, stored by a stranger in fraud of the true owner's rights. Bau- mann v. Post, 26 Abb. N. C. 134; Eisler v. Union Transfer and Storage Co., 16 Daly, 456; Baumann v. Jefferson, 4 Misc. 147; Banfield v. Haeger, 13 J- & S. 428; Ludzvig, Baumann & Co. v. Roth, 123 N. Y. S. 191. Same — When zvarehouseman' s lien superior to rights of mort- 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 warehouseman, 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 be filed tvithin 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 e.xpiration of the year and not within 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 Associa- tion V. Saul, 34 Misc. 188. Same — Purchaser taking zvith notice thereof: — A warehouse- man, having in his possession a large quantiy 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 ])urchascr out of which he was 648 NEW YORK OKCISIONS. to first pay all of his advances. The purchaser received and paid for part of the goods and when the balance was sent to him stated that as the oreneral owner was indebted to him, he had paid himself out of the i)rice of the goods and held the balance subject to the order of the warehouseman. In an action to re- ccner the full price of the goods, it was held that the warehouse- man was entitled thereto; that the purchaser took with con- structive if not actual notice of his lien for advances and charges and that he was bound to pay the same. Carrington et al. v. Jfard ct al., 71 N. Y. 360. Storage contract — Conditions not stated zvhen goods received: — Where goods are delivered to a common carrier and ware- houseman and no receipt given at the time of their delivery, a receipt containing limitations of the defendant's liability four or five weeks afterwards sent to the plaintiff, held not to consti- tute the contract between the parties as of the time of the delivery of the goods. Belser v. Daub Storage Warehouse and Van Co., 130 N. Y. S. 153. Lien — Storage charges — Time accruing: — A warehouseman having a lien for storage earned, is entitled to hold the property until his claim is paid, and for the time it is held, is entitled to be paid reasonble storage down to the date of the final trial of the litigation involving the same. Reidenbach v. Tuch, 88 N. Y. S. 366. I. Commingling of goods — P'alid sale of a part thereof ivithout segregation:— A party, owning a large quantity of grain which 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 with which the grain sold was mingled and there was 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, having a large quantity of oil in their ware- NEW YORK DECISIONS. 649 house, agreed with the plaintiff for the sale thereof and delivered 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 delivered. The plaintiffs paid the note when it became due and subsequently demanded the oil which 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 deterioration 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 in behalf of the defendant that the doctrine of the case of Kimberly et al. v. Patchin, 19 N. Y. 330, applied; that the contract was one of sale; that the plain- tiff was liable for the deterioration and loss after the title had vested in him. It was held that the present case was distinguished from Kimberlv v. Patchin. in that there was a delivery of a re- ceipt 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 con- stitute the defendant bailee for the plaintiff. Foote et al. v. Marsh et al., 51 N. Y. 288. Substitution of other property — A contract for such substitu- tion 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 and Trust .Co. v. Lipman, 91 Hun, 554. K. Replcvined goods — Defense — Elements of: — When sued for their value for failure to return goods deposited with him, it is 650 NEW VOKR DECISIONS. not a sutticiciU defense for llie wareliouseman to show that they were rcplevined hv the marshal, and not also show that the seizure was under \ alid lei;al ])roeess, when made, or that plaintiif was apprised of the replevin of the goods. Glass v. Hauser, 78 N. Y. S. 830. Same — ILxcHsc for non-delivery — Efforts to notify owner: — A hailee for reward may excuse liimself for a failure to deliver the property to the bailor by showing that the property was taken from his custody or control under authority of valid legal process and that within a reasonable time he gave notice of the fact to the owner. Evidence considered and held that defendant, who stored goods in the name of E. G , with no address, who was named in the pleading as Ezrael G and Israel G , whose correct name as amended in the pleadings was Harris G , by notifying plaintifif's brother and trying to find plaintiff's name in the directory, had done all that reasonably could be expected of him to inform plaintiff. Glass v. Hauser, 83 N. Y. S. 177. L. Replevin — Improper delivery to defendant in replevin suit — Warehouseman liable for: — A warehouse company, pursuant to an order obtained under eh. 633 of the Laws of 1895. delivered to the sheriff property which had been formerly stored with it by the defendant in an action of replevin. It appeared that prior to the service 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 property without due process of law ; that the warehouse company was liable to such third party for this wrongful delivery for it was its duty to have notified him of this order so that he might protect the goods himself. The order in the case was for the delivery to the sheriff of any property belonging to the defendant and if the warehouseman had at the time no property belonging to such defendant the order became a nullity and might safely have been disregarded. IV hitman et al. v. Kleinmann et al., 24 Misc. 554. M. Pledge— Unauthorized sale by pledgee, conversion: — Where a pledgee of property sells the same without the authority of the NEW YORK DECISIONS. 651 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. aflf'd 4 N. Y. Supp. 708. Same — Property set apart and tagged: — Certain specific pro- perty pledged to secure an existing debt was set apart, conspicu- ously marked and tagged as belonging to claimant, who exercised exclusive dominion and control over it and had free access to it. Held to be a valid pledge. American Can Co. v. Erie Preserving Co., 171 Fed. 540. Affirmed. 183 Fed. 96. Same — Delivery essential: — A warehousing company leased three warehouses of a preserving company situated at its factory. The superintendent of the preserving company was the custodian of the warehouses but endorsed his salary checks over to the preserving company retaining no compensation as custodian. The superintendent issued warehouse receipts covering the stored property and made weekly reports. The receipts were pledged as security for loans. Held that there was not a sufficient delivery of the property by the receipts and that the holders thereof acquired no rights over the general creditors. Id. 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. Injury to goods — Liability for u'hcn goods subsequently de- stroyed: — A warehouseman is lial)lc for the negligent injury of goods stored with him for hire, though it appear that after the happening 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. Pozvers v. Mitchell. 3 Hill 545. Same — Duty as to safe building: — A warehouseman in the exercise of rea.sonable care owes a duty to make reasonable in.spections from time to time to .see that the building remains safe and in proper condition, and is liable for grain destroyed by reason of negligence in the collapse of the warehouse. Buffalo Grain Co. v. Sowerby, 195 N. Y. 355. 652 NEW NOKK OKCISIONS. Loss by fire — Ncglii/cncc must he f^nm-ii — Bnidcn of proof always on plaintiff :—\\hcvc an action is hrouf^ht against a ware- houseman for the vahte of grain stored with him, and the de- fendant shows that the destruction of the goods was caused by fire, the Inudcn of proof remains upon the plaintiff to show that the fire was caused l)y the negJigence of the defendant. While it is true that a demand upon a warehouseman for goods stored with him met by an unexplained refusal constitutes a prima facie case of conversion against him, this rule does not apply where the Avarehouseman alleges that the goods were destroyed by hrc, for if the hre 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; Chiflin v. Meyer, 75 N. Y. 260; Lamb v. Camden & Amboy R. R. & T. Co.,, 46 N. Y. 271 ; Grieve v. A^ Y. C. & H. R. R. R. Co., 25 App. Div. 518. Same — Storage in different place— Proximate cause — Ware- houseman liable: — It was agreed that plaintiff's goods should be stored in a certain room in the building of defendant warehouse- man and plaintiff delivered the property for storage therein. Defendant was liable as the failure to store in the place agreed upon was the proximate cause of the loss. Mortimer v. Otto, 206 N. Y. 89. 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 destroyed 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 negligence of the defendant was as fol- lows : It appeared that the defendant had an office in one corner of the Ijuilding which was used as a warehouse and that in such office there was a small stove ; that the woodwork in close proxim- ity 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 superior 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 NEW YORK DECISIONS. 653 in the office near the stove. It was held, on appeal that these facts should have gone to the jury to determine whether or not the defendant was guilty of negligence. Grieve v. N. Y. C. & H. R. R. R. Co., 25 App. Div. 518. Loss by theft — JVatching entrance to ivarehouse — Precautions — 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 been stolen from him without his fault and offered testimony to show that he used due care in properly watching the entrances 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 ware- house during the day-time without being detected by the defen- dant or his employees. Upon motion of the defendant a verdict was given for him. On apeal 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 al., 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. Meyer, 75 N. Y. 260, rev'g Same 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 re- covery of the value of goods deposited with him, the defendant attempted to excuse his non-delivery by showing that the goods were destroyed in the collapse of his warehouse while the same was being repaired after a lire. 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. I'li.it loss may result from fires and thefts and the warelnnisenian be free from all negli- gence but in absence of earthquake or other act of God, the 654 NEW YORK DECISIONS. collapse of a Ivarehouse presupposes nce^lie^cncc for which the defendant will bo liahlo. Kaisrr v. Latimer, 40 App. Div. 149. Same — Failure to deliver — Prima facie case: — Among the goods returned to the owner which had been stored, were certain barrels and cases substituted for the owner's goods. The owner notified the warehouseman of the substitution and he refused to make good the loss. Held, where the agreement of storage and the receipt of goods has been admitted, and evidence adduced to support failure to deliver, a prima facie case of negligence is made out. Toplits v. Timmins, 88 N. Y. S. 946. Same — Burden of proof on plaintiff throughout: — In an action against a warehouseman for failure to deliver on demand pro- perty intrusted to him. it was held to be well settled that the burden of proof rests on the plaintiff throughout the entire case. It is true that when the plaintiff has made out a prima facie case by proving the contract of storage, the receipt of the goods and failure to deliver that the warehouseman 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. Mautner et al. 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 & Webb V. Blood & Green, 9 Wend. 260. Same — What the defendant must prove: — In the case of fail- ure on the part of a warehouseman to deliver upon demand goods intrusted to him, it was held that the burden of proof was upon him to establish that he was without fault after demand and refusal and that he was bound to show that he exercised ordinary care in keeping and preserving 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^. F. C. R. R. Co., 45 N. Y. 184; Ballston Refrigerating Storage Co. v. Eastern States Refrigerating Co., 142 App. Div. 135. Same — Same — Defendant must give some account of property: — A defendant, liable as a warehouseman, must give some account of the property instrusted to his care, which he fails to deliver NEW YORK DECISIONS. 655 on demand, before he can cast upon the plaintiff •the burden of proving him negligent. BusJi v. Miller, 13 Barb. 481. Same — Misdelivery — Conversion : — An action of tro\-er was brought against a warehouseman for his failure to deliver pro- perty 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 to such person by the mistake or negligence of the defendant ; that is, by his act, not by his mere omission. It was held that this constituted a conversion of the property for which the defendant was liable. IVilliard v. Bridge, 4 Barb. 361 ; Pashinsko v. Selt, 20 Misc. 665. Same — Delivery to husband of wife's goods: — Plaintiff and her husband were living together and from their house there was delivered to defendant certain household goods, which, upon demand of the husband, were delivered to him. An action was brought by the wife for their value, she claiming to be the owner. Held: when household goods are taken for storage from a house where a man and his wife are living together, at the request of the husband, and are subsequently delivered to him, clear and convincing proof is required to sustain a verdict in favor of the wife against the bailee. Judgment reversed and new trial, ordered. Oakes v. Shane, 120 N. Y. S. 626. Same — Delivery — Effect of owner's order — Warehouseman not liable: — Plaintiff stored with a warehouseman certain goods and received a warehouse receipt marked "non-negotiable" and re- quiring its presentation with a written order when any goods were to be withdrawn. I'lainlilT delivered the warehouse receipt as collateral security for a loan, signing a receipt for the money received. The money lender, it is claimed, inserted in this receipt an order to deliver the goods to him. Upon presentation of this order with the warehouse receipt, the warehouseman delivered the goods to the money lender. In an action by the owner against the warehouseman for the value of tiie goods : Held, that the entire receipt for the money and order to deliver the goods being in the .same handwriting, defendant was justified in acting upon the order and delivering the goods. 'I'hat any fratul perpclrated was l)y negligence of jjlaintilT ;ind ouglit to be borne by her instead of an innocent third parly who relied upon her order. ^>56 NEW YORK DECISIONS. Also liekl, that the legal effect of the transaction was to pledge the i-tropcrty as security, and that even tlunigh an order had not Itecn gi\en for their delivery it does not follow that the plaintiff was entitled to reco\er. While bailee may not ordinarily set up the rights of a third person against his bailor when sued for conversion, the right of a third person to whom the bailee has delivered the property may be considered as a defense. Kramer- V. Hacgcr Storage IVarcJwuse Co., 108 N. Y. S. 1. Same — Same — Liability: — Warehousemen are not only liable 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. Same — Failure to deliver — Presumption of: — A presumption of negligence on the part of a warehouseman arises upon the non-delivery of goods to the owner on his demand, and the warehouseman is then called upon to account for his failure to deliver. This duty to account for failure to deliver to the owner does not shift the burden of proof. The jury should be instructed as to the nature of the explanation the defendant is called upon to give to meet the prima facie showing of negligence. Herrman v. Neiv England Navigation Co., 128 N. Y. S. 380. Cold Storage — Fruit runined by temperature becoming too lozv- — Not entitled to storage charges — Liability for damages: — The plaintiff, a warehouse company, brought an action for stor- age charges against the defendant who had stored a quantity of fruit in the former's cold storage rooms. The defendant counterclaimed, alleging and proving that the fruit was damaged and rendered useless while being kept at too low a temperature 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. Greenwich Ware- house Co. v. Maxfield, 8 Misc. 308. Same — Temperature too high — Warehouseman liable: — Plain- tiff stored a quantity of apples with defendant warehouseman. NEW YORK DECISIONS. 657 which were found to be damaged when removed. The findings of fact showed that the necessary uniform temperature was from 31° to 32° F. ; that defendant permitted the temperature to arise to, and for periods to continue at 34° to 36° F., and on one occasion to 38°. Held: that defendant was liable, as it failed to show that the injury to the fruit did not happen in consequence of its failure to exercise due care. Ballston Re- frigerating and Storage Co. v. Eastern States Refrig. Co., 126 N. Y. S. 857. Same — Duty to maintain temperature: — The defendant main- tained a cold storage warehouse for the preservation of eggs and other perishable property, and plaintiff, without an express con- tract, stored a quantity of eggs with it. Plaintiff had access to and inspected the eggs from time to time. By reason of the ice melting in the adjoining compartment the temperature rose and a quantity of the eggs were spoiled. Held, that defendant impliedly undertook to maintain the necessary temperature re- quired for the preservation of such property as should be stored by its customers. That defendant should have supplied more ice, or if this was impracticable, to have given plaintiff timely notice to remove his property before damage by deterioration. There being no express contract as to the time the property was to remain, the contract was a continuing one until terminated by one of the parties. Sutherland v. Albany Cold Storage and Warehouse Co., 171 N. Y. 269, reversing 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 tem- perature 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 temperature cold enough to preserve the goods. Behrman v. Linde, 47 Hun, 530. Delivery — Evidence: — A truckman hired to cart and move certain goods testified that he packed a part into eleven barrels, and took all the goods to defendant's warehouse, delivered them, and drove away the empty wagon. Defendant's agent admitted that all plaintiff's goods delivered by the truckman had been 42 658 NEW VdKK DECISIONS. placed m iho rcociviiii;- room aiul llial he saw the truckman hriiifr the iTiHKls in. IMaintiff saw tlie waj^on ch-iven to the wareliouse and janitor's wife testified that all plaintiff's goods were removed. Held: That prepondcrence of evidence showed a delivery of the goods and failure (o return. Ulieeler v. Blumcnthal. 107 N. V. S. 57. Evidence — Receivable to slioiv 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 music to the plaintiff, in that it contained notes thereon made by her husband, was pro- perly received. Leoncini v. Post, 37 St. Rep. 255. Same— Theft— Evidence of negligence:— AcUon for value of o-oods stored with warehouseman. The warehouseman did not employ an inside watchman or maintain a burglar alarm, but employed a night watchman in common with other merchants. Burglars secured an entrance by climbing from an adjoining building and forcing the door to an elevator shaft. Held: that the evidence failed to show that defendant omitted any precaution which may be reasonably said to have furnished the occasion or opportunity for the burglary. Judgment reversed and new trial. Batelle v. Mercantile Warehouse Co., 124 N. Y. S. 135. Same — Injury to goods — Condition of goods and cost of re- pairs: — In a suit against a warehouseman for injury to a piano player shipped in his care, from Chicago to New York at the direction of plaintiff, held to be essential to recovery to show the condition of the instrument at the time it was shipped or came into defendant's possession. Also held, improper to admit expert evidence of the cost of putting the instrument in first class con- dition, in the absence of proof that it was in such condition when delivered to railroad company in Chicago and actually or pre- sumptively in such condition when delivered to defendant. Fin- silver v. Manhattan Storage and Warehouse Co., 129 N. Y. S. 401. Sam,e — Instructions to jury — Where alleged to he 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 NEW YORK DECISIONS. 659 to show that the cigars in question had been stolen from him without his fault. The court instructed the jury that the de- fendant must prove that the loss was immediately connected with the theft, and, further, that in spite of such theft he had exercised ordinary care, or that the loss occurred without negligence on the part of the defendant. Schzvcrin et al. v. McKie et al., 51 N. Y. 180; Claflin et al. v. Meyer. 75 N. Y. 260, rev'g Same v. Same, 11 T- & S. 1; Madan v. Covert et al., 10 J. & S. 135; Williamson v. N. Y., N. H. & H. Ry. Co., 22 St. Rep. 431 ; Leonciiii v. Post. 37 St. Rep. 255; Lichenstein 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. Same — Written receipt for goods as in good condition not con- clusive — A written receipt given for goods as in good condition does not preclude the owner from maintaining an action for injury to the goods, if he can explain the circumstances under which the receipt was given not necessarily inconsistent with the existence of the claim. Comerford v. Smith. 81 N. Y. S. 610. Pleading — Bill of particidars: — In action for conversion of goods sold for nonpayment of charges, held: that if plaintiff claimed an agreement that defendant would not sell the property, that defendant was entitled to a bill of particulars setting forth the nature and character of the agreement, when and where made, whether oral or in writing, and the name or names of persons present. Taylor v. Metropolitan 'fireproof Storage Warehouse Co., 125 N. Y. S. 137. o. 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. Kirkpatrick v. Dean ct al.. 3 N. Y. Supp. 60, aff'd 15 Daly, 182. Same— Lost goods found after demand:— In the absence of a special plea, where the goods are finally delivered, the measure of damage is the difference in their value at the time and place the goods ought to have been (Kli\rrc'il and al the time nf their actual delivery. On plaintiff's testimony that the value of the 660 NEW VOKK DECISIONS. jjoods at the day of the trial was the same as wlieii they were shipped, judgment at tlie most shotild he for interest and costs. Failure to deliver on the day of demand docs not make a ware- houseman a purchaser of the goods. When goods arc found before trial the defendant is entitled to credit for the property recovered. Porter v. Duval Co.. Ill N. Y. S. 825. Same — Interest allozvable from date of demand: — A ware- houseman 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 entitled 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 plaintiffs the loss of interest upon the value of their property without a valid excuse, they cannot justly complain of being charged with interest." Schwerin et al. V. McKie et al., 51 N. Y. 180. Same — Value of damaged goods: — In an action against a ware- houseman for damage to crockery while in the van, it was held error to allow the plaintiff the original cost of $55 for a bisque figure, when the evidence showed that if restored (the pieces having been saved) would be^ worth $8 to $10. Also held error to allow $40 for a dinner set costing $55 when five or six pieces were broken, in the absence of evidence showing whether the broken pieces were important or insignificant; to what extent, if any, their broken condition depreciated the rest of the set; the market value of the pieces broken ; the cost to replace them ; or the difference in the value of the entire set before and after the accident. Comerford v. Smith, 81 N. Y. S. 610. Same — Purchase price does not always govern: — In ascertain- ing the amount of damages resulting from the loss of goods stored with a bailee, the purchase price is not always a criterion of the value thereof. There may be circumstances which would render such criterion manifestly unfair, hence other evidence will be received. Jones v. Morgan, 24 Hun. Z72; aff'd 90 N. Y. 4; Leoncini v. Post, 2)7 St. Rep. 255. NEW YORK DECISIONS. 661 Same — Same — Market value — Cost: — In an action against a warehouseman for conversion of wine the plaintiff may recover the market value of the goods in the form stored and not the value after the payment of duty, bottling, labeling and pack- ing. While the evidence of the cost of the goods is not con- clusive as against plaintiff, it is some evidence of the value. Palestine Hebrew Wine Co. v. Terminal Warehouse Co., 123 N. Y. S. 346. P. Insurance — Obtained by warehouseman — Proportion recover- able: — Plaintiff deposited his goods with defendant with the assurance of the latter that they would be covered by general policies of insurance while in his possession and consequently plaintiff carried no special insurance on the goods. The goods were destroyed by fire and defendant secured from plaintiff an estimate of $175 as their value, which was included as an item in the proof of loss. Held: that plaintiff should recover such proportion of $175, the value of the goods, as $37,500. the in- surance paid, bore to $38,984.66, the total amount of loss. Souls v. Lowenthal, 81 N. Y. S. 622. Warranty — Representations tliat zvarehouse 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 con- clusive, was to the effect that the defendant had stated that his warehouse was free and safe from frost, that the bulbs would keep therein and that the warehouse was as frost proof as brick, iron and mortar could reasonably be expected to make it. It was 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 expression of opinion as to what could be expected of brick, iron and mortar, anfl that it was not a warranty that all goods stored therein would not be injured by frost. Hallock et al. v. Mallet, 23 R. & S. 265. 662 NEW NdKK DIVISIONS. Same — .Idz'crtiscmrnt i'o)itaiuin(/ false statements as to the eonstruction of the warehouse — Liability of uKK DECISIONS. 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. aff'd 143 U. S. 517. See A^. D. ex-rel. Stoescr v. Brass, 2 N. D. 482. aff'd 153 U. S. 319; Munn v. Illinois, 69 111. 80, aft"d 94 U. S. 113. Note — In the opinion in The People v. Budd (143 U. S. 517) the Supreme Court declined to anticipate what its decision might have been had the storage rates pre- scribed by statute been inadequate. In the lirst of the above cases to be decided by the United States Supreme Court, Munn v. Illinois, two justices dissented; in the second case. The People v. Budd, three justices dissented; in the last case, A^. D. ex rcl. Stoeser v. Brass, there were four dissenting justices. See also State v. Associated Press, 159 Mo. 410, in which Mr. Justice Sherwood severely criticizes the doctrine of People V. Munn; See also the following leading cases: People v. Walsh, 117 N. Y. 621. (The report of this case in 22 N. E. Rep. p. 670, contains Mr. Justice Peck- ham's dissenting opinion.) Dow v. Beidclman, 125 U. S. 680; Los Angeles City Water Co. V. City of Los Angeles, 177 U. S. 558; Covington & L. S. Co. v. Sandford, 164 U. S. 578; Lake Shore & M. R\<. Co. v. Smith^ 173 U. S. 684; M. & St. Paul Ry. Co. V. State, 134 U. S. 418; Minneapolis E. Rv. Co. v. State. 134 U. S. 467; Stone V. Farmers' L. & T. Co., 116 U. S. 307; Smyth v. Ames, 169 U. S. 466; Smyth V. Ames, 171 U. S. 361; People v. Walsh, 36 L. ed. 247. NORTH CAROLINA LAWS. 677 CHAPTER XXXIII. NORTH CAROLINA LAWS PERTAINING TO WAREHOUSEMEN Who may become: — Any corporation organized under the laws of this state and whose charter authorizes it to engage in the business of a warehouseman, 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 giving the bond hereinafter required. Pells Revisal, 1908, sec. 3029. Above section construed — Embraces packing house com- pany: — Defendant, a packing company, a New Jersey cor- poration, had its principal office in Kansas, and maintained in North Carolina warehouses and cold storage plants with neces- sary employees. The business of defendant considered and held to constitute "doing business" in the state, and that above Act is valid. Lacy v. Armour Packing Co., 134 N. C. 567; affirmed 200 U. S. 226." Bond to Clerk of Court; penal sum: — Every such corpora- tion so organized under the preceding section, except such as shall have a capital stock of not less than five thousand dollars, to become a public warehouseman shall give bond in a reliable bonding or surety company on an individual bond with suffi- cient sureties payable to the State of North Carolina in an amount not less than ten thousand dollars, to be approved, filed with and recorded by the clerk of the superior court of tiie county in which the warehouse is located, for the faithful perform- ance of the duties of a public warehouseman ; but if such cor- poration has a capital stock of not less than five thousand dol- lars, then it shall not be required to give the bond mentioned in this' section. Pells Revisal 1908, sec. 3030. Injured person may sue on bond:— Whenever such ware- houseman fails to jjcrform any duty or violates any of the provisions of this, any person injured by .such failure or vio- 678 NORTH CAROLINA LAWS. lation may bring an action in his name and to his own use in any court of com]ietent jurisihction on the bond of said warehouse- man. Id. ^cc. >^031. Insurance on stored property; storage receipts: — Every such warehouseman shall, when requested thereto in writing by a party placing property with it on storage, cause such property to be insured ; every such warehouseman shall, except as here- inafter provided, give to each person depositing property with it for storage a receipt therefore, 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 receipts shall also 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 : Pro- dded, that every such warehouseman shall, upon request 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 assign- ment of said non-negotiable receipt shall not be effective until recorded on the books of the warehousemen issuing it. Id. sec. 3032. Title passes with storage receipt: — The title to cotton goods, merchandise and chattels stored in public warehouses shall pass to a purchaser or pledgee 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, unless such receipt is non-negotiable. Id. sec. 3033. Title when goods are mixed: — When grain or other prop- erty is stored in public warehouses in such a manner that dif- ferent lots or parcels are mixed together, or that the identity can- not 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 without regard to separation or identification. Id. sec. 3034. Books of account kept; open for inspection: — Every such warehouseman shall keep a book in which shall be entered an NORTH CAROLINA LAWS. 679 account 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 open to the inspection of any person actually interested in the property to which such entry relates. Id. sec. 3035. Sale of property for storage charges one year overdue ; pro- ceeds; notice of sale: — Every such public warehouseman 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 proceeds may retain all charges for storage of such goods, wares and merchandise, and any advances that may have been made thereon by it, and the expense of advertising and sale thereof, but no notice of such sale to the person in whose name the said goods, wares and merchandise were stored, requiring him. naming him, 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. Id. sec. 3036. Notice; how served; return of; publication: — The notice required in the last preceding section shall be served by de- livering it to the person 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 l)e 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 this state, then such notice shall be given by publication once each week for two successive weeks, the last publication to ])e 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 tlie event that the party storing such goods shall have parted with 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. sec. 3037. Surplus disposed of: — Every such warehouseman shall make an entry in a book kept for that purpose of the amount of the proceeds of all sales, and any balance shall be paid over 680 NORTH CAROLINA LAWS. to the person entitled thereto on demand. If sueh balance is not demanded by the owner within six months after such sale, it shall be paid by said warehouseman to the clerk of the court of the county in which said warehouseman is located, and he shall pay the same to the party entitled thereto, if demanded within ten years after said sale; 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 of the party entitled thereto so far as the same are known. Id. sec. 3038. When perishable or dangerous property is stored ; proceeds of sale paid to clerk, when: — Whenever a public warehouse- man 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 threeof. or which by its odor, leakage, inflammability or explosive nature is likely to injure other goods, such property having been stored upon non-negotiable receipts, and when the warehouseman has notified the person in whose name the property was received to remove such property, and if such person has refused or omitted to remove the property and to pay the storage and proper charges thereon, the 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, after de- ducting 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 rea- sonable 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. Id. sec. 3039. When unable to sell perishable or worthless property: — Whenever a public warehouseman under the provisions of the preceding section has made a reasonable efifort 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 proceed to dispose of such property in any lawful manner, and it shall not be liable in any way for property so disposed of. Id. sec. 3040. NORTH CAROLINA LAWS. 681 Storer liable for charges, when: — Whenever a public ware- houseman under the provisions of the two preceding sections has sold or otherwise disposed of property and the proceeds thereof have not been sufficient to pay the expenses of sale, storage and other charges against said property, then the person in whose name said property was stored shall be liable to said public warehouseman for such deficit. Id. sec. 3041. Maximum charges fixed: — The charges and expenses of handling and selling leaf tobacco upon the floor of tobacco ware- houses shall not exceed the following schedule of prices, viz : For auction fees, fifteen cents on all piles of one hundred pounds or less, and twenty-five cents on all piles over one hun- dred 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 commissions on the gross sales of leaf tobacco in said warehouses not to exceed two and one-half per centum. Id. sec. 3042. Weighers sworn: — That all leaf tobacco sold upon the floor of any tobacco warehouse shall first be weighed by some re- liable 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 accurately weigh all tobacco offered for sale at the warehouse of , and correctly test and keep accurate the scales upon which the tobacco so ofifered for sale is weighed." Said oath to be filed in tlie office of the clerk of the superior court of the county in which said warehouse is situated. Id. sec. 3043. Bill of charges rendered; penalty: — That 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 hanrlHng, 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. For each and every violation of the provisions of this sub-chapter a penaUy of ten dollars may be recovered by any one injured thereby. Id. sec. .3044. Warehousemen must keep and report amounts sold: — ( )ii and after the first day of August, one thousand nine hundred 6S2 NORTH CAROLINA LAWS. and seven, the itroprietor of each and every leaf tobacco ware- honse doinjj business in this state shall keep a correct account of the number of pounds of leaf tobacco sold upon the floor of his warehouse daily. On or before the fifth day of each succeed- ing month the said warehouse proprietors shall make a state- ment, under oath, of all the tobacco so sold upon the floor of his warehouse during the past month and shall transmit the said statement, at once, to the commissioner of agriculture at Raleigh, North Carolina. The reports so made to the commissioner of agriculture shall be so arranged and classified as to show the number of pounds of tobacco sold for the producers of tobacco from first hand; the number of pounds sold for dealers; and the number of pounds resold by the proprietor of the warehouse for his own account or for the account of some other ware- house. Id. sec. 3982a. Reports copied into books open to public: — The commis- sioner of agriculture shall cause said statement to be accurately copied into a book to be kept for this purpose, and shall keep separate and apart the statements returned to him from each leaf tobacco market in the state, so as to show the number of pounds of tobacco sold by each market for the sale of leaf tobacco ; the number of pounds sold by producers, and the num- ber of pounds resold upon each market. And the said com- missioner of agriculture shall keep said books open to the inspec- tion of the public, and shall, on or before the tenth day of each month, after the receipt of the reports above required to be made to him on or before the fifth day of each month, cause the said reports to be published in the Bulletin issued by the agri- cultural department, and in one or more journals published in the interest of the growth, sale and manufacture of tobacco in the state, or having a large circulation therein. Id. sec. 3982b. Penalty for violating two preceding sections: — Any person wilfully violating the provisions of this act shall be guilty of a misdemeanor and punished within the discretion of the court, and, in addition thereto, shall be subject to a penalty of five hun- dred dollars, to be sued for in the county of Wake by the attorney general whenever he may be advised by the commissioner of agriculture that persons required by this act to make reports to him have failed to do so. Id. sec. 3982c. NORTH CAROLINA DECISIONS. 683 Warehouse, unlawfully disposing of property stored in public: — If any person unlawfully sells, pledges, lends or in any other way disposes of or permits or is a party to the unlaw- ful selling, pledging, lending, or other disposition of any goods, wares, merchandise, or anything deposited in a public ware- house without the authority of the party who deposited the same, he shall be punished by a fine not to exceed two thousand dollars and by imprisonment in the state's prison 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 selling, pledging, lending or other disposition of any goods, wares, merchandise, article or thing so deposited. Id. sec. 3831. Lien for storage charges: — Every person, firm or corpora- tion who shall furnish storage room for furniture, goods, wares or merchandise and make a charge for storing the same, shall have the right to retain possession of and a lieu upon all furni- ture, goods, wares or merchandise until such storage charges are paid. An Act to create a lien upon certain goods for storage charges. Took effect March 12, 1913. Public Laws, North Carolina, 1913, Chap. 192, page 313, Sec. 1. Sale for charges: — If such charges are not paid within ten days after they become due then such person, firm or corpora- tion is authorized to sell said furniture, goods, wares or mer- chandise at the county courthouse door, after first advertising such sale for ten days at said courthouse door and three other j)ublic places in said county, or in some newspaper ])ublished in said county where the goods arc stored, and out of the proceeds of such sale to pay the costs and expenses of sale and all costs and charges due for storage, and the surplus, if any, pay to the owner of sucli furniture, goods, wares or merchandise. Id. Sec. 2. DECISIONS AFFECTING WAREHOUSEMEN B. Warehotiscman not 'uisurers — Damages — Negligence: — While warehousemen are not insurers like common carriers, they are liable for damages caused by their negligence, lo articles stored 684 NORTH lAKOLlNA DKCISIONS. with iheni. Motley Sf Co. v. Soiithrni Fiiiishiiuj r'r Warehouse Co.. \22 X. r. M7. ICareliotisenteii — Ordinary care required — Definition of: — Plaint iff sliippcd by defendant certain goods to Ashville where defendant plaoed them in its warehouse with the understan(Hng phiintitY would pay defendant for storing them. The evidence tendetl to show that the warehouse was destroyed by fire carried by the wind from some cars of defendant which had caught fire. The fire did not originate in the warehouse and the only sug- gestion of negligence was that there was in the warehouse or in the cars nearby some explosives which rendered it dangerous for the firemen to go near. It was conceded that defendant held the ffoods as a warehouseman. Held: that, as to the responsibility of the present bailee (warehouseman) ordinary or average dili- gence is required. This is such care and diligence as prudent per- sons of the same class are wont to exercise toward such property, or in the management of their own property under like circum- stances. For failure to exercise this degree of care and diligence the bailee must respond. The burden of proof is on the plaintiff to show negligence. The fact that the goods are destroyed by fire raises no presumption of negligence on the part of the bailee. Ordinary care is required and is that which men of common prudence generally exercise about their own affairs in the age and country in which they live. Judgment for defend- ant affirmed. Lyman v. Southern Ry. Co., 132 N. C. 721. 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. F. Carriers— When liable as zvarehousemen and duty to care for baggage: — Plaintiff's salesman delivered to defendant two trunks containing samples to be carried to his destination. Upon the arrival there of the trunks defendant placed them upon the plat- form of its freight depot where they remained three days, during which time the contents were damaged by rain. Held: that liabil- ity of defendant as a carrier having ceased and its liability as a warehouseman having commenced that it was its duty to place the baggage in a proper and suitable place and to exercise ordin- NORTH CAROLINA DECISIONS. 685 ary care and diligence in safely keeping it; that wherever the place of deposit might be, to see that the baggage was protected from injury by exposure to the weather, or other cause. Judg- ment for plaintiff affirmed. Charlotte Trouser Co. v. 5". A. L. Ry. Co., 139 N. C. 382. Loss by fire — Degree of diligence required — Suggestions by bailor or others: — A railroad company had in its possession as warehousemen, the goods of plaintiff', upon which the freight had been paid. The goods were retained in the warehouse at plaintiff''s request. A fire broke out near the warehouse but not on the property of the company. While the fire was burn- ing plaintiff asked permission to remove his goods. This was refused, because, in the opinion of the company's officers, if the warehouse 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 eff'ort 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 possible. 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 this 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 of plain- tiff, or strangers, as to the best method to save goods in the warehouse. That if it used all means at its command 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 destruction of plain- tiff'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 hekl responsible for failure to adopt measures which subsequent events show would have i)ro- duced better results. An honest and reasonable effort made in the exercise of an honest judgment is all \\\c law re(|uires of him. Turrcntine v. Wilmington & IV. R. R. Co., 100 N. C. 375. 686 NORTH CAROLINA DECISIONS. Same — Negligence — Proximate cause: — In an action for dam- ages against a railway company to recover 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 delivery to consignees, and remained there for nearly two days ; notice of their arrival was given the plaintifif who paid the freight charges with full know- ledge 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 defend- ant's property. Held, (1) There was a delivery in law of the goods to the plaintiff consignee, which exonerated the defend- ant 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 con- trol, does not constitute neglibence in the defendant, the permis- sion to erect the same not being the proximate cause of the injury sustained by the plaintiff. 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 steamboat 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 the bill of lading that the defendant was not to be liable for any loss or damage arising from fire, etc. Held that questions tending to show defendant had negligently allowed an accumulation of freight in its ware- house were improperly excluded. Hornthal v. Roanoke, N. & B. S. Co., 107 N. C. 76. A^^^/iV/^nc^.-— 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 zvant 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 liable for injury resulting 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 NORTH CAROLINA DECISIONS. 687 the warehouse and the location of the tobacco. Motley v. South- ern Finishing & Warehouse Co., 126 N. C. 339. O. Measure of damages: — The measure of damages for property damaged while in the care of a storage or warehouse company is the difference between the market value of the property in its damaged condition and what it would have sold for, if undam- aged, on the day of its return to the owner. Motley & Co. v. Southern 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 loss, void: — A clause in a bill of lading that notice of loss or damage to the goods must be given in writing to a carrier within thirty days after delivery thereof, or after due time for such delivery, is unreasonable and void. Gwyn Harper Mfg. Co. v. Carolina Central R. R., 128 N. C. 280. Same — Interpretation — 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 liability for an unreason- able delay. Branch & Pope v. Wilmington & 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. IVilliams, Black & Co., v. The Wilmington & W. R. R. Co., 93 N. C. 42 ; Brozvn 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 effect that such corporation shall not he liable for loss or damages not 688 NORTH CAROLINA DECISIONS. proviilotl for in its warehouse receipt or contract, attempts to confer exclusive privileges and is therefore unconstitutional and void. Motley & Co. v. Southern Finishing & Warehouse Co., 122 N. C. 347. Same — Sa)ne — Illustration: — The clause of the character of the defendant company which reads as follows : "Provided, how- ever, 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. Taxation: — A packing company doing business zmthin the state liable to $ioo state tax. Taxing Statute Constitutional: — Facts considered and defendant held to be "doing business" within the state as a meat packing house ; that Sec. 56, ch. 247, Laws of 1903 is valid and constitutional, and that defendant is liable for $100 tax. Lacy v. Armour Packing Co., 134 N. C. 567, affirmed 200 U. S. 226. NORTH DAKOTA LAWS. 689 CHAPTER XXXIV. NORTH DAKOTA LAWS PERTAINING TO WAREHOUSEMEN. Public warehouses — Commissioners of railroad, powers and duties: — The duties imposed by the provisions of this article and the powers conferred herein devolve upon the commission- ers of railroads. Revised Code, North Dakota, 1905, sec. 2241. Commissioners of railroads — Duties: — It shall be the duty of commissioners of railroads to supervise the handling, weighing and storing of grain and seed; to establish all necessary rules and regulations for the weighing of grain and for the manage- ment of 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; investi- gate all complaints of fraud or oppression in the grain trade of this state, and correct the same. They shall revoke the license of any warehouse for cause upon notice and hearing. Id. sec. 2242. as amended by Act approved March 12, 1909, Laws N. Dak., 1909, c. 230, p. ?>?>Z. Rules to be published: — The rules and regulations so estab- lished shall be printed and published by the commissioners of railroads in such manner as 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. Revised Code, North Dakota. 1905, sec. 2243. Public warehouses defined: — All buildings, elevators and warehouses, and all grist and flour mills doing a ship])ing business in this state, erected and operated, or which may hereafter be erected or operated by any person, association, copartnership, corporation or trust, for the purposes of buying, selling, storing, shipping or handling grain for profit, are declared public ware- houses, and the person, association, copartnership or corpora- tion owning or operating such buildings, elevators or ware- 44 690 NOKril DAKOIA LAWS. houses, wliioli are now. or may bcroaftcr be located or doing business wiiliin this state, wbetlier such owners or operators rcsiile within tliis state or not, are pubbe warehousemen within tlie 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. Id. 2244. Above section construed: — Does not apply to those engaged strictly in a milling business. Ex parte Bellamy, 114 N. W. 376. See section 2251. License, how obtained — Fee, how determined: — A biennial state license must be maintained through the commissioners of railroads to expire on the first day of August of each odd num- bered year and for each and every public grain warehouse in operation in this state. No license issued under this article shall describe more than one public grain warehouse, or grant per- mission to operate any other public grain warehouse, than the one therein described. The license fee is hereby fixed at eight dollars for warehouses of a capacity of twelve thousand bushels or less, and ten dollars for warehouses of a capacity of over twelve thousand bushels and not to exceed twenty-five thousand bushels, and twelve dollars for all warehouses over twenty-five thousand bushels and not to exceed fifty thousand bushels, and twenty dollars for all warehouses over fifty thousand bushels and not to exceed eighty thousand bushels, and twenty-five dollars for all warehouses over eighty thousand bushels capacity for each public grain warehouse ; provided, that before any license is issued the person applying therefore shall file with the commis- sioners of railroads the receipt of the state treasurer showing that the applicant has paid into the state treasury the amount of said license fee. Revised Code North Dakota, 1905. Id. sec. 2245. as amended by Act approved March 19, 1907, Laws N. Dak., 1907. c. 112, p. 167. 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 issuance thereof, and no license shall run for a longer period than one year. Any person NORTH DAKOTA LAWS. 691 or association, who shall transact the business of public ware- houseman without first procuring a license 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. Re- vised Code Xorth Dakota. 1905, sec. 2246. Bond to be filed: — The proprietor, lessee or manager of any warehouse or elevator in this state shall file with the commis- sioners of railroads a bond to the state with good and sufficient sureties to be approved by such commissioners in the penal sum of not less than five thousand nor more than seventy-five thou- sand dollars, in the discretion of the commissioners, conditioned for the faithful performance of their duty as public warehouse- men 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 warehouses 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 cor- poration, shall be in a sufficient amount to protect the holders of outstanding tickets. Id. sec. 2247. Above Section construed — What complaint must show — Parties: — Where suit is brought upon the bond required 1)y this section the complaint must show that such action is brought on behalf of all the holders of storage tickets upon which default has been made. The better procedure is to bring the action in the name of the state for the benefit of such ticket holders. An action by one of such ticket holders in own individual name will not lie. Phillips v. Scmingson et a/., 142 N. W. 47. Warehouse receipts, what to contain: — All owners of such elevators and warehouses shall, upon the request of any person delivering grain thereat, give a warehouse receij^t therefor, sub- ject 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 consecutively 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 l)y him any language in anywise limiting or modifying his 692 NORTH DAKOTA LAWS. lial)ilitics as iiuposctl by the laws of tliis state. Revised Code, North Dakota, 1^)05, sec. 2248. Above section construed: — I'liis seclion refers merely to the issuance of warehouse receipts for grain delivered in the ele- vator or warehouse. State v. Rohh-Lazvrcnce Co., 115 N. W. 846. What storage receipts shall express: — Each storage receipt issued in this state shall expressly provide that at the option of the holder of such receipt the kind, quality and quantity of grain for which such grain was issued shall be on his demand, delivered back to him, at any terminal point, or at the same place where it was received upon the payment of a reasonable charge per bushel for receiving, handling, storage, and insurance charges; and in case of terminal delivery the payment, in addition to the above, of the regular freight charges on the gross amount called for by the tickets being surrendered — such charges to be fixed by express terms in the storage receipt at the time of receiving 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. Nothing in this section shall be construed to require the delivery of the identical grain specified in the receipt so presented, but an equal amount of the same grade of grain or in lieu thereof a receipt issued by a bonded warehouse or elevator company doing business at terminal points, for an equal amount of grain of the same grade; provided, that grain placed in a special bin be excepted from the provisions of the section. Revised Code, North Dakota, 1905, sec. 2248. Bailment, not a sale — Insolvency: — Whenever any grain shall be delivered to any person, association, 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 deliv- ered, 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 fail- ure or insolvency of such bailee be first applied exclusively to the redemption of outstanding warehouse receipts for grain so stored NORTH DAKOTA LAWS. 693 with such bailee. And in such event grain on hand in any partic- ular elevator or warehouse shall first be applied to the redemption and satisfaction of receipts issued by such warehouse. Id. sec. 2250. 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 offer as provided 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. 2251. Above section construed: — Petition for writ of habeas cor- pus. The petitioner, an officer of a corporation engaged in the business of purchasing wheat and manufacturing flour for sale, was held for larceny under section 2251. Held: that he was not "doing a grain, warehouse or grain elevator business," nor was he "engaged in doing a shipping business." That section 2251 relates only to those engaged in the business mentioned in sec. 2244 and was designed to create the relation of bailor and bailee between persons delivering and receiving grain for storage and shipment, and to make guilty of larceny such bailees who wilfully neglect or refuse to deliver on demand the grain thus bailed or its equivalent. The section is not intended to apply to persons engaged strictly in a milling business. Ex parte Bellamy, 114 X. \V. 376. Rates of storage: — The charges for storage and handling of grain shall not exceed the following rates : For receiving, elevating, insuring, delivering and twenty days' storage, two cents i)er bushel. Storage rates after the first twenty days, one-half cent for each fifteen days or fraction thereof, and not exceeding five cents for six months. The grain shall be kei)t insured at the expense of the warehouseman for the ben- efit of the owner. Revised Code, North Dakota, 1905, sec. 2252. Section constitutional: — The above section held constitu- ional in North Dakota ex rel. Stoeser v. Brass, 2 N. D. 482, aff'd 153 U. S. 391. .Sec North I^akota decisions, page — . Penalty for violation of this article: — Any person wlio shall knowingly cheat, or falsely weigh any wheat or other agricultur.il 694 Noirni dakota laws. products, or \vlu> shall \ iolalc any of i1k' prnx isions of liiis article shall he (Iccmcil i;uiUv of a iiiisdcnicanor, and shall on conviction thereof he subject to a line of not less than two hundred dollars nor more than one thousand dollars and be imprisoned in the penitentiary for a period not exceedin": one year, in the discretion of the court. Revised Code, North Dakota, 1905, sec. 2253. Warehouse on railroad right of way — Application: — Any person, lirm or corporation desirous of erecting and operating at or contiguous to any railway staticMi or siding a warehouse or elevator for the purchase, sale, shipment or storage of grain for the public 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 ware- house 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 or siding for the right, privilege and easement of erecting and maintaining for the time stated in said application, 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 siding and upon paying or securing in the manner hereinafter prescribed reason- able compensation for the right, privilege and easement afore- said, shall absolutely and unconditionally be entitled to the same. Id. sec. 2254. Compensation — Notice to applicant: — The application pro- vided in section 2254 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 person, 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, priv- ilege and easement, the same shall be ascertained, assessed and determined 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 NORTH DAKOTA LAWS. 695 and in session for the purposes of this article. 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 ware- house under the provisons of this article, to within ten days after the receipt of said application notify said applicant in writ- ing 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 in case said person, firm or corporation fails to notify the applicant within said ten days, said person, firm or corporation shall be deemed to have ac- cepted said amount, and upon payment or tender thereof said applicant shall be deemed to have acquired the right, privilege and easement applied for. Id. sec. 2255. Procedure in district court: — Proceedings in the district court shall be instituted and carried on as follows : The party seeking the right, privilege and easement aforesaid shall pre- sent to and file with 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 appli- cation 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 tiiereafter where and when the court will try, ascertain, assess and determine the amount of such compensation ; a certi- fied copy of which order at least twenty days before the time so fixed upon, shall be served upon the ])arty from whom the right, pri\ilegc and casement 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 jf)in in the proceedings and shall be ample to give the court full jurisdiction over the party against whom the proceedings arc instituted and the property involved in the proceedings. /(/. sec. 2256. Trial — Election of gross sum or annual rental — Writ: — At the time and place so lixcd for ascertaining, assessing and deter- mining the comjK-nsation aforesaid, the court shall immediately proceed to try said matter, without a jury, if ihv parties con- sent, and if they do not consent and if the time and place fixed 696 NOR 111 DAKOIA LAWS. for said hearing; is at a general or special term of said court where a petit jury has been suninioned, the court shall proceed to a hearing of such matter with a jury selected and sworn from the i)anel present at such term, in the same manner as jurors are selected and sworn from the panel present at such term. in the same manner as jurors are selected in civil actions, and if the regular i)anel is exhausted before a jury is secured, talesmen may be summoned. In case said proceedings are made return- able 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 as 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 proceed 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 anntial rental and in the form of a gross sum for tlie right, privilege and easement sought, and immediately 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 after elec- tion is made as aforesaid, judgment shall be rendered adjudging, among other things, that upon 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 application and petition aforesaid, and for the time therein specified ; and thereupon the party in whose favor said judgment is rendered shall be entitled to a writ of execution in ])ropcr form to immediately invest such party with the right, privilege and easement aforesaid. Id. sec. 2257. Forfeiture — Appeal — Costs: — In case the annual rental is elected the same shall be i)aid. 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 NORTH DAKOTA LAWS. ^^'^ later, an appeal may be taken by either party to the supreme court, but such appeal shall not stay or hinder the use or enjoy- ment 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 proceedings shall make and file a bond with sureties, to be approved 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 finding of the court or jury is for a less or the same amount as tendered by the petitioner before instituting the proceedings, then the petitioner 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 re- versed or modified, the appellant shall be deemed the successful party; but if the judgment or order appealed from is affirmed, the respondent shall l)c deemed the successful party. /(/• sec. 2258. Warehouses deemed public— Open, when:— All elevators and warehouses erected and maintained under the provisions of this article, shall be deemed public elevators and public ware- houses and shall be subject to legislative control and shall l)e kept open for 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 succeeding calendar year. Any person, linn or corporation who fails to comply with the provisions of this section shall forfeit the rights, privileges and easements ac(|uircd unrlcr this article. Id. sec. 2259. Erection of warehouses: — Any persons, firms or corpora- tions availing themselves of the provisions of this article ^hall within sixty days after the amount to be paid for the easement acfiuired thereunder is finally determined, by agreement or by proceedings in court, commence the erection of the warehouse or eleval(jr stated in the application referred to in section 2254 and comijlete the same within ninety days thereafter, and in case of failure to comply with the ])n)visions of this section they shall be deemed to have abandoned the right, inivilcgc and easement acquired, and the part or portion of the railroad right l'>^S NORTH OAKOTA LAWS. of way ilcscrihctl in llicir applioalioii shall he sul)jccL to selection by other ajiplicants who may desire to avail themselves of the provisions of this article. /(/. sec. 2260. Side tracks provided by railroad company: — Every railroad company or cori^oration organized nnder the laws of this state, or doins.:^ business therein, shall upon ap])lication 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 stations ; and every such railroad corpo- ration shall permit connections to be made and maintained in a reasonable manner with its side tracks to and from any ware- house or elevator without reference to its size, cost or capacity, where grain is or may be stored ; provided, that such railroad company shall not be required to construct or furnish any side tracks except u])on its own land or right of way; provided, further, that such elevators and warehouses shall not be con- structed within one hundred feet of any existing structure and shall be at a safe fire distance from the station buildings and so as not essentially to conflict with the safe and convenient opera- tion of the road ; and where stations are ten miles or more aj^art the railroad company when required so to do by the commission- ers of railroads shall construct and maintain a side track for the use of shippers between such stations. Id. sec. 2261. License Keepers of Public Warehouses: — The board of railroad commissioners may license any suitable person, persons, or corporations established under the laws of this state, and hav- ing their place or places of business within this state, to carry on business of public storage companies or public warehouse- men, who may keep and maintain public warehouses for the storage of goods, wares and merchandise, etc., excepting grain in bulk. Said license may be obtained ui)on the payment annually into the treasury of the state of the sum of ten dollars, to be credited to the general fund of the state. Id. Sec. 2262, as amend- ed by Act approved March 12, 1913, T.aws North Dakota, 1913, Chap. 239, page 383. Bonds: — Each person or corporation licensed under Sec- tion 2262 shall give a bond to the Treasurer of the State, in the penal sum of five thousand dollars, with good and sufficient sureties to be approved by the board of railroad commissioners. NORTH DAKOTA LAWS. 699 for the faithful discharge of the duties of a pubHc warehouseman. Id. Sec. 2263 as amended by above mentioned Act of March 12, 1913. Subject to Action in Name of State: — When any one licensed to do business as a public storage company or as a public warehouseman fails to perform his duty, or violates any of the provisions of this Article, any person, persons or corporations in- jured by such failure or violation may, with the consent of the board of railroad commissioners and the Attorney General, bring an action in the name of the state, but to his or their own use, in any court of competent jurisdiction, on the bond of such company or warehouseman. In such action the person, persons or corporation in whose behalf the action is l:)rought shall file with the court a satisfactory bond for costs, and the state shall not be liable for any costs. Id. Sec. 2264 as amended by above mentioned Act of March 12, 1913. Insuring property stored: — Every public storage company or warehouseman shall when requested thereto in writing by any party placing property with him in storage, cause such property to be insured for whom it may concern ; and such storage com- pany or warehouseman shall not be held liable for the loss or damage by fire to the owner or owners of any property stored with him, unless such request to insure is made as aforesaid and he or they fail to comply therewith ; provided, that such loss or damage is not occasioned through the negligence of himself, his agents, servants, or employes ; provided, that such storage com- pany or warehouseman may, in case they deem it necessary and proper, insure such property without such request, in writing, in which event the cost of such insurance shall be and become a valid lien and charge thereon as provided in section 2269. Re- vised Code, North Dakota, 1905, sec. 2265. Title of goods stored: The title of goods and chattels stored witli a public storage company or in a public warehouse shall pass to a purchaser, or pledgee, by the indorsement and delivery to him of the storage com])any's or warehouseman's negotiable receipt therefor, signed by the i)arty to whom such receii)t was originally given, or Ijy an indorsee of such receipt, subject to all liens and charges thereon for warehousing, ad- vanced charges and insurance. Id. sec. 2266. 7lK) NOR 111 DAKOIA LAWS. Above section construed: I'lic assignment and delivery of storaj^c lickcis unconditionally passes the title to the property aiul to the sti^rac^e tickets to the i)erson to whom they are deliv- ered. St. .liitlioiiy & Dakota liln'atov Co. v. Ihnvson & By field, 126 N. W. 1013. '1015. Storage charges — No discrimination: — Every such storage ct>mpany or warehouseman shall receive, forward and store all property offered for such purposes by any person, persons or corporation, impartially and at as low a rate of charge, and in a manner and on terms, and in (|uantities as favorable to the party offering such property as it or he at the same place receives, forwards and stores, in the ordinary course of business, property of like description and in similar quantities offered by any other person, persons or corporation. No such storage company or warehouseman shall discriminate against any particular person, persons or corporation, or subject them or him to any undue and unreasonable prejudice or ledgc: — A debtor having certain warehouse receipts deposited as collateral with a note in bank, executed a second note and assigned the same warehouse receipts as security therefor, sub- ject to the payment of the first note from the proceeds to be de- rived from a sale of the property represented by tlie receipts. The holder of the second note did not know the debtor was insol- vent. In an action by creditor or debtor it was held that both were valid pledges of the receipts and that a sufficient constructive delivery had been made. Hunt v. Bode, 66 Ohio 255. Same — Effect of statement in receipt that the bailor has a lien on goods for full 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- houseman agreed to hold the goods subject to the order of the plaintiff he having a lien thereon for the full cost of the same, it was held that the general property in the goods and the right of possession passed to the plaintiff under such warehouse re- ceipts and that he was therefore entitled to compensation for the time that he was deprived of their possession by the sheriff. Gibson, Stockwell & Co. v. The Chillicothe Bank, 11 O. S. 311. 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 assignee of the second receipt, obtained possession of the goods from the ware- houseman. Subsequently the assignee of the first receipt recov- ered the goods from the plaintiff in a 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 re- ceipts as a defense to the action, there being no privity between the plaintiff and the defendant. Second National Bank, etc., v. IValbridge, 19 O. S. 419. OKLAHOMA LAWS. 739 CHAPTER XXXVI OKLAHOMA LAWS PERTAINING TO WAREHOUSEMEN. Chief inspector — Appointment: — The governor shall ap- point a suitable person who shall not be interested, directly or in- directly, in any public warehouse in this state, who shall be a grain expert, and who shall be known as the chief inspector of grain for the state of Oklahoma, whose term of service as such shall continue for two years from the date of his appointment and until his successor is appointed and qualified. Revised Laws 1910. sec. 8245. Duty of Inspector: — It shall be the duty of the chief in- spector to have general supervision of the inspection of grain as required by this Article. Id. sec. 8246. Public warehouses: — Public warehouses shall embrace all warehouses, elevators and granaries in which is stored grain in bulk, and in which the grain of dififerent owners is mixed to- gether, or in which grain is stored in such a manner that the identity of different lots cannot be accurately preserved: Pro- vided, That no warehouse, elevator or granary with a capacity of less than 25,000 bushels measurement, shall be considered a pub- lic warehouse. Jd. sec. 8247. License to operate: — The proprietor, lessee or manager of any public warehouse shall be required, before transacting any business in such warehouses to procure from the district court of the county in which such warehouse is siltialcd a license per- mitting such proprietor, lessee or manager to transact business as a public warehouseman under the laws of this state, which license shall be issued by the clerk of said court upon written ap- plication, which shall set forth the location and name of such warehouse and the individual name of each person interested as owner or princi])al in llic management c^f the same, or, if the warehouse be owned or managed by a corporation, the names of 740 OKLAHOMA LAWS. the president, secretary, and treasurer of such cori)oration shall be stated, and the said license shall give authority to carry on and conduct the Inisiness of a jmblic warehouse in accordance with the laws of this state, and shall be revocable by the said court upon a summary proceeding before the court upon the com- plaint 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. /(/. sec. 8248. Warehouseman — Bond: — Any 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 with good and sufficient surety to be approved by said court, in the penal sums as per the following schedule of capacities by measurement: For a public w-arehouse with a capacity not exceeding 100,000 bushels, $25,- 000 ; for a public warehouse with 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 than 200,000 bushels and not exceeding 300,000 bushels, $60,000 ; for a public warehouse with a capacity of more than 300,000 and not exceeding 400,000 bushels, $75,000, conditional for the faithful performance of his duties as a public warehouseman as surety for any penalties found by due course of law for violation of any clause of this article and his full and unreserved compliance with the laws of this state in relation thereto. Id. sec. 8249. Conducting warehouse without license: — Any person who shall transact the business of a public warehouseman, 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 surety for the penal sum in which it is executed by the court approving the same (save only that he may be per- mitted 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 per- son whose license has been revoked within one year from the time same was revoked. Id. sec. 8250. OKLAHOMA LAWS. 741 Receiving grain : — It shall be the duty of every person doing a public warehouse business under this article 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 not to discriminate between persons desiring to avail themselves of warehouse facilities, and that the schedule of charges for such warehouse service shall be uniform, regardless of quantities of lots so offered or received. Id. sec. 8251. Inspection, receipt: — Receipts of grain by public ware- houses in all cases shall be inspected and graded by a duly au- thorized 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 general stock of the warehouse, which bin shall be marked "special," with the name of the owner and the quan- tity and grade 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. 8252. Inspection before delivery: — No grain shall be delivered from a public warehouse constituted by this article unless it be inspected by a duly authorized inspector, and found to be of grade called for by receipt presented for such delivery. Id. sec. 8253. Different grades not mixed: — Public warehousemen shall not mix any grain of different 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 de- liver 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 grades, either from the general stock or from special bins, be mixed together while in store or control of stich public warehousemen. Id. sec. 8254. Preservation of grain: — Whenever it may be necessary, in order to j)reserve the condition of any bin or lot of grain stored 742 OKLAHOMA LAWS. in a puhlio warehouse, lo run llie eonlents of said grain (bin) through niaehinery to air, clear or otherwise improve or pre- serve such eon(htion, and it is so desired by the owner or ware- houseman, this may he done, but in such manner as will insure the contents of each l)in or lot intact, and of the same grade as when stored; Imt this shall not be done except under the super- vision of an authorized inspector under this article. Id. sec. 8255. Grain refused when: — Nothing of this article shall be con- strued so as to compel the receipt of grain into any warehouse in which there is not sufficient room to accommodate or store it properly, or in cases where such warehouse is necessarily closed. Id. sec. 8256. Not to be 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. 8257. Combination with carrier prohibited: — No warehouseman, agent or manager of a public warehouse shall enter into any com- bination, agreement or understanding with any railroad, transfer or agent or manager of a public warehouse shall enter into any combination, agreement or understanding with any railroad, trans- fer or other carrying corporation, or with any person, by tion of the owner, his agent or assignee. Id. sec. 8258. Warehouse receipt — Contents: — 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 warehouseman 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 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 OKLAHOMA LAWS. '^'^3 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 ware- house during any one year, except in case of a lost or de- stroyed receipt, in which case the new receipt shall bear the same date and number as the original, and shall be plainly marked upon its face "duplicate." If the grain for which the receipts are issued was received from railroad cars, the number of each car shall be stated in the receipt, with the amount each car con- tained; if from wagons or 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. 8259. 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 quan- tity 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 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 re- mainder 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 number, and the receipt upon which a part has been delivered shall ht 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 warehouse- man consents thereto, the original receipt shall be cancelled the same as if the grain had 1)een delivered from store; and the new receipts shall state on their face that they are parts of other re- ceipts 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 explaining the change; but no consolidation of receipts of dates differing more than ten days shall 1)C per- mitted, and all new receipts issued for oUl ones cancelled as 744 OKLAHOMA LAWS. herein pro\ iiletl shall bear the same dates as those ()ri,i,niially is- sued as near as may he. Id. see. 8260. Liability not limited: — No warehouseman under this article shall insert, in any receipt issued for j^rain received, any lan- ,ijua,s:e in any wise limitinjj^ or modifyinj^ his responshiility or liability as imposed by the laws of the state. Id. sec. 8261. Cancellation of receipt: — Upon delivery of grain from store upon any receipt, such receipt shall he 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 ill circulation, nor shall grain be delivered twice upon the same receipt. Id. sec. 8262. Receipt transferable : — 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 or- der such receipt may be issued, and such indorsement shall be deemed a valid transfer of the property represented by such re- ceipt, and may be made either in blank or to the order of another. Id. sec. 8263. Felony to issue fraudulent receipt: — Any warehouseman of any public warehouse created by this article, or employee or manager connected 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 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), 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 article, impris- onment in the penitentiary for not less than two nor more than ten years. Id. sec. 8264. Delivery on return 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 pre- sented by original holder), accompanied by the tender of all OKLAHOMA LAWS. 745 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. 8265. Storage rates — Publication of: — The manager of every pub- lic warehouse created by this article shall be required, during the first week in January of each year, to publish, in one or more of the newspapers published in the vicinity in which such ware- house is situated, a 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 pub- lished 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. 8266. Warehouseman's statements — Reports: — The manager of every public warehouse created under this article, shall, on or be- fore Tuesday morning of each week, cause to be made out, and keep posted in the business office of his warehouse in a conspicu- ous 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 deliv- ered or shipped by such warehouse during the previous week, and what warehouse receipts have been cancelled upon which the grain has been delivered during such week, giving the num- ber of each receipt anrl the amount, kind and grade of grain received and shipped upon each ; how much through grain in transit to points outside of the state, if any, may have been T4G ■ OKLAHOMA LAWS. received for iTanssliipment for which warehouse receipts have not been issued, was so shipped or delivered, and the kind and ffrade of it. when and how such unreceipted grain was received. He shall also make weekly reports to the said commissioners of receipts and deliveries of such unreceipted grain, if any, received for the account of owners of such warehouse, either directly or indirectly, with the amount, kind and grade of same. He shall also report 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 state- ments to the commissioners regarding receipts issued or can- celled 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. 8267. Responsibility for damage by fire — Preservation of grain : — 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 same, and that such damage was the result of causes beyond their control ; but unless public notice be given that some por- tion of the grain in store is out of condition or becoming so, grain of equal quality to that received shall be delivered on all receipts presented. 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 to preserve the same, he shall immediately give public notice by advertise- ment in a daily newspaper, if one is published in the 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- OKLAHOMA LAWS. 747 dition. The enumeration of receipts and indentification 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 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 vigilence in pre- 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 or town where such ware- house is located. Id. sec. 8268. Responsibility of warehouseman: — Any warehouseman proven guilty of any act of negligence, the efifect of which is to depreciate the condition of property stored in the warehouse un- der his control, shall be held responsible 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. 8269. Statement of business : — 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 time as the commis- sioners hereinafter provided for shall require and prescribe, a statement concerning the condition and management of his business as such warehouseman. Id. sec. 8270. Copy of law to be posted: — All proprietors or managers of l)ub!ic warehouses in this state shall keep posted up at all times in a conspicuous place in their offices, and in each of their ware- houses a printed copy of this article. Id. sec. 8271. Warehouses to be open, when — Scales: — All persons owning property, or interested in the same, stored in any public ware- house created by this article, and all duly authorized inspectors 748 OKLAHOMA LAW'S. of such property, shall at all times during ordinary business hours be at full liberty to examine such, and all proper facilities shall be extended to such persons by tlio warehouseman, his aj^ents 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 by any authorized inspector of such property. All scales used for the weighing of property in public warehouses shall be subject to examination and test by any duly authorized inspector, the expense of such tests by inspector to be paid by the warehouse- man 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. 8272. Penalty for violation: — Except as herein otherwise provided, a violation of any of the preceding provisions of this article, by any warehouseman, owner, lessee, manager or employee of public warehouses created by this article, 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. 8273. County attorney to prosecute : — 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 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 state of Oklahoma. Id. sec. 8274. Injured party may sue on bond : — If any warehouseman shall be guilty of a violation of any provision of this article, to the in- jury of any person, 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 name of the people of the state of Oklahoma, to the use of such person. Id. sec. 8275. Deputy and assistant inspectors: — The said chief inspector shall be authorized to appoint a suitable person as deputy chief in- spector, to be acting chief inspector in the absence of the chief in- spector. He shall also be authorized to appoint assistant inspect- ors, who shall not be interested in any public warehouse in this OKLAHOMA LAWS. 749 State: Provided, That he shall not appoint more than three assistant inspectors. Id. sec. 8276. Oath and bond of inspector: — The chief inspector shall, upon entering upon the duties of his office, be required to take the constitutional oath of office. He shall execute a bond to the people of the state of Oklahoma in the penal sum of ten thousand dollars, with sureties to be approved by the board of commissioners hereinafter provided for, conditional that he will pay all damages to any person who may be injured by reason of his neglect, refusal or failure to comply with the law and the rules and regulations of this article. Id. sec. 8277. Oath, bond and liability of assistants: — The deputy chief inspector and all assistant inspectors appointed under this article 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 state. Suit may be brought upon bonds of either the chief inspector, deputy chief inspector or assistant inspector 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, the deputy chief inspector, or assistant inspector. Id. sec. 8278, Board of commissioners: — The chief inspector of grain, tiie deputy chief inspector, assistant inspector 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 secretary of state, state auditor and attorney general and the said commissioners, shall have full power to make all proper rules and regulations for the inspection of grain not inconsistent with this article, 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 llu' same, which charges shall be regulated in sucl) manner as will, in (he judg- ment of the said board of conmiissioncrs, produce sufficient rev- 760 OKLAIIOl^rA LAWS. enuc to meet the necessary expenses of the service of inspection, and no more. /(/. sec. 8279. Compensation of Inspectors: — It shall be the duty of said board of commissioners to lix the amount of compensation to be paid to the chief inspector, dei)Uty chief inspector and assistant inspectors, and all other persons employed in the service of in- spection, and prescribe the time and manner of payment : Pro- vided, That the salary of the chief inspector shall not exceed one thousand dollars per annum, deputy chief inspector, not to exceed six hundred dollars per annum, and the assistant inspectors not to exceed three hundred dollars per annum each ; and the board of commissioners not to exceed one hundred dollars per annum each; Provided further, That the state of Oklahoma shall not be liable for the payment of any of the above salaries in any manner whatsoever. Id. sec. 8280. Penalty for improper conduct: — Any duly authorized chief inspector, deputy chief inspector, or assistant 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 valuable consideration, directly or in- directly, for any neglect of duty as such chief inspector, deputy chief inspector, or assistant inspector, or any person who shall improperly influence any chief inspector, deputy chief inspector, or assistant inspector of grain 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 hundred dol- lars nor more than one thousand dollars or shall be imprisoned in the county jail not less than six nor more than twelve months, or both such fine and imprisonment, in the discretion of the court. Id. sec. 8281. Penalty for acting without authority: — Any person who shall assume to act as an inspector of grain who has not been duly ap- pointed, sworn and given bond as provided herein, shall be held to be an imposter, shall be guilty of a misdemeanor and upon convic- tion thereof shall be punished by a fine of not less than one hun- dred dollars nor more than five hundred dollars, or by imprison- ment 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 ofifense so committed. Id. sec. 8282. OKLAHOMA LAWS. 751 Removal of Inspectors: — Upon complaint in writing of any person to the board of commissioners, supported by satisfactory proof, that any person appointed or employed by said chief inspector under the provisions of this article has violated any of the rules prescribed for his government, or has been guilty of any improper ofificial act, or has been found incompetent for the duties of his position, 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 employed. Id. sec. 8283. Appeal from inspectors: — In all matters invloving doubt on fhe part of the chief inspector, 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, con- signee 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 appeal may be made to the committee hereinafter provided for, who shall at once convene, and whose decision, after a careful inquiry into the questions at issue, shall be final. Id. sec. 8284. Arbitration committee: — The board of commissioners shall, appoint committees for the adjustment of differences between in- spectors and warehousemen, or owners or representatives of grain, arising from the acts of inspectors, each committee to con- sist of three persons well known as experts in grain ; and a com- mittee shall be appointed in each city or town where public ware- houses under this article are located. Said committees to be known as the arbitration committees of the board of commission- ers. Id. sec. 8285. Same — 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 appointment and terms of service. Id. sec. 8286. Grading: — The board of commissioners shall establish a proper number and standard of grades for the inspection of 752 OKLAHOMA LAWS. grain, wiili due rcj^ard lo tlic i)ro\aiHiig usages of the markets of this state, ilu- interests of l)oth producers and dealers, and, as near as may be, to conform with standards of grade adopted by leading markets of the United States : Provided, No modifica- tion or changes of grades shall be made or any new ones estab- lished without pul)lic notice being given of such contemplated changes, for at least twenty days prior thereto, by publication in three daily newspapers printed in this state : Provided further, That no mixture of old or new grades, even though designated by the same name or distinction, shall be permitted while in store. Id. sec. 8287. 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 disclose the actual working of the system of the warehouse business of this state as contem- plated by this article and such suggestions thereto as to them may appear pertinent. Id. sec. 8288. Commissioners to inspect 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 offices, directors, managers, 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 is being or has been violated, they shall cause to be prosecuted or prosecute all persons guilty of such violation. To enable such commissioners efficiently to perform 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 inquire personally into the management of such warehouse business. Id. sec. 8289. Examinations by commissioners: — The property, books, records, accounts, papers and proceedings of all such warehouse- men as are contemplated by this article, shall at all times during business hours be subject to the examination and inspection of OKLAHOMA LAWS. 753 the commissioners, or any one of them, and they or any one of them shall have power to examine under oath any owner, man- ager, lessee, agent or employee of a public warehouse, and any other person, concerning the condition and management of such warehouse. Id. sec. 8290. Witnesses may be compelled to attend: — In making any ex- amination as contemplated by this article or for the purpose of obtaining information as contemplated by this article, said com- missioners shall have the power to issue subpoenas for the attend- ance of witnesses, and may administer oaths. In case any per- son shall willfully refuse to obey such subpoena, it shall be the duty of the district court of any county, upon application of said commissioners, to issue an attachment for such witness, and com- pel 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. 8291. Penalty for refusing to testify: — Any person who shall will- fully 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 misdemeanor, and shall be liable to arraign- ment and trial in any court of competent 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 dol- lars, 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. 8292. County attorney to prosecute: — It shall be the duty of every county attorney on the request of said commissioners, to insti- ture and prosecute all suits or proceedings which he shall be di- rected by said commissioners to institute and prosecute for a vio- lation of this article, or any law of this state concerning public warehouses as constituted by this article, or the officers, employ- ees, owners, operators or agents of such warehouses. Id. sec. 8293. Prosecutions and fines: — All prosecutions under this article shall be in the name of the state of Oklahoma, and all moneys 48 "S-t OKLAHOMA LAWS. arisiiii;- tliorcfroni shall he paid into llic state treasury by the slierifT or other otlieers ooUectiiit;- the same. Id. sec. 8294. Injured party may sue for damages: — This article shall not be construed to waiver or affect the right of any person injured by the violation of any law in regard to warehouses from prose- cuting for his private damages in any manner allowed by law. /(/. sec. 8205. Grain in cars may be inspected: — Any person, partnership or corporation may have grain, in carload lots in transit or other- wise, inspected by said inspectors under this article in the same manner as though in warehouses and subject to the same rules and regulations as herein prescribed. Id. sec. 8296. Public warehouses and warehousemen defined: — All persons, firms, companies, or corporations incorporated under the laws of Oklahoma, who shall receive cotton, or broomcorn, under the pro- visions of this article, 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 pro- visions of this article, shall be deemed and taken to be public warehouses ; Provided, that a public warehouse for the storage of cotton or broomcorn may, within the meaning of this Act, include a lot or parcel of land enclosed with a lawful fence, the gates of, or entrances to which shall be kept securely locked at night. Id. sec. 8297. Certificate and bond:— The owner, proprietor, lessee, or man- ager of any public warehouse, whether an individual firm or cor- poration, before transacting any business in such public ware- house, shall procure from the county clerk of the county in which the warehouse or warehouses are situated, a certificate that he is transacting business as a public warehouseman under the laws of the State of Oklahoma, which certificate shall be issued by said clerk upon a written application setting forth the location and name of such warehouse of warehouses, and the name of each person, individual, or member of the firm interested as owner or principal in the management of the same; or if the warehouse 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 au- OKLAHOMA LAWS. 755 thority to carry on and conduct the business of a public warehouse within the meaning of this article, and shall be revocable by the district court of the county in which the warehouse or ware- houses are situated upon a proceeding before 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 person receiving a certificate as herein provided for, shall file with the county clerk, granting same, a bond payable to the State of Oklahoma with good and sufficient surety to be approved by said clerk, in the penal sum of not less than five thousand dollars, conditioned for the faith- ful performance of his duties as a public warehouseman, which said bond shall be filed and preserved in the office of said clerk. Id. sec. 8298. Warehouse receipts: — On application of the owner or depositor of the property stored in a public warehouse, the ware- houseman shall issue over his own signature, or that of his duly authorized agent, a public warehouse receipt therefor, to the order of the person entitled thereto, which receipt shall purport 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 location, the description, quantity, number and marks of the property stored, and the date on which it was originally received in the warehouse, and that it is deliverable upon the return of the receipt properly endorsed 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 order of their issue, and when such receipt is for cotton or broomcorn the receipt shall state whether the cotton therein described is exposed to the weather or is under shelter ; and a correct record of such receipt 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 l)e 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 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 ;" provided, that no such fluplicatc receipt shall be issued by the public warehouseman until an affidavit 756 OKLAHOMA LAWS. of the owner lias been filed with said public warehouseman that said original receipt has been lost or destroyed. Id. sec. 8299. Receipt to issue, when: — No public warehouse receipt shall be issued, except upon the actual previous delivery of the goods into the public warehouse, or upon the premises and under the control of the public warehouseman by whom it purports to be issued, and the name of the warehouse shall invariably be specified in such receipt. Id. sec. 8300. Property delivered on return of receipt: — On the presenta- tion and return to the warehouseman of any public warehouse receipt issued by him and properly endorsed, and the tender of all proper warehouse charges upon the property represented by it, such property shall be delivered immediately to the holder of such receipt; but no public warehouseman who shall issue a receipt for goods shall under any circumstances, or upon any order or guarantee whatsoever, deliver the property for which receipts have been issued, until the said receipts shall have been sur- rendered and cancelled, and in default of the strict compliance of the provisions of this section, 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 penalty herein provided. Upon delivery of the goods from the warehouse upon any receipt, such receipt shall be plainly marked in red ink across its face, 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. Id. sec. 8301. Receipts to contain no limitations: — No public warehouse- man shall insert in the public warehouse receipt issued by him, any language limiting or modifying his liabilities or responsibilities as imposed by the law of this State. Id. sec. 8302. Receipt negotiable: — The receipt issued against property stored in public warehouses, as herein provided for, shall be negotiable and transferable by endorsement in blank or by special endorsement 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 transferer or holder of such pub- lic warehouse receipt shall be considered and held as the actual and exclusive owners to all intents and purposes, of the property OKLAHOMA LAWS. 757 therein described, subject only to the loan (lien) and privilege by the public warehouseman for storage and other warehouse charges; Provided, that no public warehouseman shall issue ware- house receipts against his own property in his own warehouse, but upon sale of such property in good faith, may issue to the pur- chaser his public warehouse receipt in form and manner as herein provided, which issue and delivery 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 l^e construed to exempt the issuer of such receipt for his own goods, in his own public warehouse, from complying with and being subject in all respects to all other sections and provisions of this article. Id. sec. 8303. Insurance: — The owner of each public warehouse for the storage of cotton or broomcorn, shall carry insurance on cotton and broomcorn against fire, equal in amount to the value of fifty per centum of the actual capacity of said warehouse and in case of loss by fire shall pay when collected, to each holder of a ware- house receipt, three-fourths of the market value of his cotton or broomcorn as shown by said receipt on the date said cotton or broomcorn was destroyed ; Provided, that all storage fees may be retained by the owner or owners of said warehouse. Id. sec. 8304. Fees: — The owner of a public warehouse shall be allowed to charge the following fees as full compensation for weighing, storage and insurance on all cotton or broomcorn stored, viz. : A sum not to exceed seventy-five cents per bale for the first month, and fifteen cents per month for each additional month or major fraction thereof ; Provided, that if said warehouse is located on a railroad right of way, the owner or owners of said warehouse shall cause to be loaded all cotton shipped from said warehouse, without additional compensation. Id. sec. 8305. Penalty for violation: — Any public warehouseman who vio- lates any of the provisions of this article shall be deemed guilty of criminal oflfense and upon conviction thereof, shall be punished by a fine in any sum not exceeding five thousand dollars, or imprisonment in the State penitentiary not exceeding two years, or by both such fine and imprisonment. And every person ag- grieved by the violation aforesaid, shall have the right to main- tain or action against the person or [)ersons, corporation or cor- 758 OKLAHOMA LAWS. poratioiis. so violating any of (lie prvisions of this article, for the recovery of daniai^cs wliicli he or they may have sustained by reason of such violation aforesaid before any court of com- petent jurisdiction, whether such j^erson so violating shall have been convicted of offense under this article or not. Id. sec. 8306. Not to apply to private warehouse : — Nothing herein shall be construed to apply to private warehouses or to the issue of receijUs l)y their owners or managers under existing laws, or to prohibit public warehousemen from issuing such receipts as are now issued by private warehousemen under existing laws ; Pro- z'ided, that such private warehouse receipts issued by public ware- housemen shall be written on a form blank indicating that it is issued from a public warehouse, but shall liear on its face in large characters the words "not a public warehouse receipt." Id. sec. 8307. Fraudulent warehouse receipts: — Any 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 instru- ment, whether such instrument is issued to a person as being the owner of such merchandise, or as a security for any indebted- ness, is punishable by imprisonment in the penitentiary not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Id. sec. 2711. Same — Exception: — 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 men- tioned in the bill of lading, receipt or other voucher, did not cor- respond with the description given in such instrument of the merchandise received, if such description corresponded sub- stantially 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. 2712. Duplicate receipts or vouchers: — Every person mentioned in the first two sections of this article who issued any second or duplicate receipt or voucher of a kind specified in those two sec- tions, at a time while any former receipt or voucher for the mer- OKLAHOMA LAWS. 759 chandise specified in the second receipt is outstanding and uncancelled, without writing across the face of the same the word "duplicate," in a plain and legible manner, is punishable by imprisonment in the penitentiary not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Id. sec. 2713. Lien for services rendered: — Every person, who, while law- fully 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 spcial lein thereon, dependent on possession, for the com- pensation, if any, which is due to him from the owner for such service. Id. sec. 3852. Re-weighing of stored cotton — Duty of buyer: — Every person, firm or corporation in the State of Oklahoma, engaged in the business of cotton buying, where lists of baled cotton are purchased from local buyers, and the said cotton stored in cotton yards or cotton warehouses owned or operated by cotton weigh- ers, shall, before removing same, have said cotton re-weighed. Act approved March 7, 1913, Sess. Laws Okla., 1913, chap. 24, page 41, sec. 1. Same — Duty of warehousemen: — Every owner or operator of a cotton yard or warehouse in the State of Oklahoma, shall be required, before allowing any cotton to be removed from his yard, or warehouse, to re-weigh same in the presence of the owner or purchaser, or some agent of said purchaser, or owner of same; and, with indelible ink, mark on the bale, in figures, the weight of the bale. Id. sec. 2. Test of scales: — Any interested persons, not satisfied with the weights or weighing, shall have the right to ask the sheriflf of the county in which said cotton yard or warehouse is located to test said scales and the sheriff, or his deputy, shall immediately upon receipt of such request comply with same ; provided, the purchaser shall pay the fee of the second weighing. Id. sec. 3. Conclusiveness of re-weighing: — Persons, firms or corpora- tions engaged in the cotton business, coming under the provisions of this act, shall have the right to be present al llic re-weighing of any cotton they may purchase or desire t(^ purchase, and when any cotton shall be re-weighed in llicir presence they shall accept 760 OKLAHOMA DECISIONS. the woit^hts as being correct and make final settlement on the same. /(/. sec. 4. Same: — AVhen a list of cotton has been re-weighed before leaving the cotton yard, according to the provisions of this act, the transaction between the bnyer and seller as to weights, shall be at an end and neither party shall have any recourse on the other. /(/. sec. 5. Violation of act — Punishment: — Any person, firm or cor- poration, failing or refusing to comply with this act, shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00). Id. sec. 6. DECISIONS AFFECTING WAREHOUSEMEN B. Ordinary care — Warehousemen not insurers: — Warehousemen are not insurers of property intrusted with them but are liable only for negligence or the want of ordinary care. There must be some dereliction of 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. Same — Liable for zvant of care in proper construction of warehouse: — Plaintiff stored with defendant certain meat which spoiled while in storage by becoming impregnated with a strong taste of pine or other pungent wood. Held, that a warehouse must be reasonably and ordinarily safe against common, ordinary occurrences, and the warehouseman is liable where injury results from a lack of reasonable skill and diligence in its construction. In the protection and care of property intrusted to him, a ware- houseman must use ordinary care, which is such care and dili- gence as ordinarily prudent persons in that business are accus- tomed to exercise towards such property, and whether such care was used is a question for the jury. Judgment for plaintiff affirmed. Muskogee Crystal Ice Co. v. Riley Bros., 24 Okla. 114; 108 Pac. 629. Same — Bank liable for loss of jewelry received on special deposit: — Plaintiffs delivered a box containing jewelry to a OKLAHOMA DECISIONS. 761 National Bank for safe keeping, and evidence showed that it was the custom of the bank to receive packages, papers, and the like for safe keeping for its depositors. Held: that the bank was liable for the loss of same occasioned by negligence of its em- ployees. Bank V. Tevis, 29 Okl. 714; 119 Pac. 218. Same — Liable for damage caused by flooding, when — Measure of damage: — -Action against warehouseman for damage by water to household goods on storage, caused by store room becoming flooded, and the warehouseman negligently permitting the goods to remain wet after the water came into the warehouse. The evidence examined and held to sustain verdict for plaintiff. The Court instructed the jury as follows : "Should you find that the plaintiff is entitled to recover, then you must measure his damages from the evidence in this case, by determining the difference between the market price of the goods at the time they were delivered to defendant and at the time they were delivered back by defendant to plaintiff." Further held that as defendant had requested this prayer he could not be heard to deny that it correctly stated the law. Red Ball Transfer & Storage Co. v. DeLoe, 120 Pac. 575. Q. Warehouse receipts — When warehouseman is not liable for improper use of receipts: — A warehouseman received certain cotton on storage from a cotton grower and issued receipts there- for. Subsequently the receipts were sold to cotton buyers who presented them and received the cotton but were permitted to retain the receipts to take to the cotton market so that if the cotton fell short in weight they might come back to the warehouse- man who agreed to make up the difference. These tickets were afterwards accepted by plaintiff as collateral to secure an over- draft. The rule stated to be that if the warehouseman placed the receipts in the hands of the cotton buyer for any other than a legitimate purpose, or if they were fairly chargeable with any negligence by means of which the buyer had l)een enabled to impose on the bank, the warehouseman would be liable. Evidence discussed and judgment for defendant aftinned. Bank v. nidridge, 109 Pac. 62, 64. OREGON LAWS. CHAPTER XXXVU. OREGON LAWS PERTAINING TO WAREHOUSEMEN. The Uniform Warehouse Receipts Act, with the exception of the changes noted below is in force in Oregon. It was filed in the office of the Secretary of State on February 27, 1913, and provides it shall take effect on January 1, 1914. General Laws of Oregon 1913 Ch. 305 p. 581. See also this volume p. 1. The Act constitutes an amendment of section 6035 of Lord's Oregon Laws. In lieu of the first section of the Uniform Ware- house Receipts Act it is provided as follows : "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 delivered to the owner of such grain, flour, pork, beef, wool, produce or commodity a warehouse receipt therefor." The definition of "Warehouseman" as given in the Act is as follows : " 'Warehouseman' means a person lawfully engaged in the business of storing goods for profit, and includes every person keeping, controlling, managing or operating as owner or agent 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 pro- duce or commodity is stored." By section 60 sections 6036, 6039 and 6040 of Lord's Oregon Laws are repealed. Commodities of different quality must not be mixed: — No person operating any warehouse, commission house, forwarding house, mill, wharf, or other place where grain, flour, pork, beef, wool, or other produce or commodity is stored shall mix any grain, flour, pork, beef, wool, or other produce or commodity OREGON LAWS. 763 of different grades together (or different qualities of the same grade,) or deliver one grade for another, or in any way tamper with the same while in his possession or custody, with a view of securing any profit to himself or any other person and in no case mix different grades together while in store. Lord's Ore. Laws 1910, sec. 6037. Produce must not be shipped without owner's consent: — No 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 beyond his custody and con- trol, any flour, grain, beef, pork, wool, or other produce or com- modity for which a receipt has been given by him as aforesaid, whether received for storing, shipping, grinding, or manufac- turing, or other purposes, without the written assent of the holder of the receipt. Id. sec. 6038. Penalty for violation of provisions of this act: — 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 h\c thousand dollars, or imprisonment 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 con- viction; and all and every person or persons aggrieved by a violation of this act may have and maintain an action at law against the person or persons, corporation or corporations, vio- lating any of the provisions of this act, to recover all damages, immediate or consequential, which he or they may have .sus- tained by reason of such violation, before any court of compe- tent jurisdiction, whether such person shall have been convicted under this act or not. Id. sec. 6041. Grain not to be received in storage till bailee complies with this act: — It shall be unlawful for any bailee or bailees, on and after July 1, A. Tl 1903. tn solicit or receive any kind of grain in storage belonging to any other person or persons, whether for compensation or otherwise, until such bailee or bailees shall have complied with tlic provisions of this act. Id. sec. 6042. Bailees to procure license from county court and display same: It shall Ijc the duty of every bailee or bailees, before 7t'4 OREGON T.AWS. engagintj in the business of storing grain l)e]onging to any other person or persons, whether for compensation or otherwise, to procure from the county court of tlie country in which his or their place or places of business shall be located, a license or certificate authorizing such bailee or bailees to engage in the said business of storing grain belonging to any other person or persons, whether for compensation or otherwise, which license or certifi- cate shall be conspicuously displayed in the office or offices, or other part of any building used as a warehouse, where grain is kept on storage belonging to any other person or persons, whether for compensation or otherwise. Id. sec. 6043. County court to require undertaking: — It shall be the duty of the county courts of the several counties of the state when any person, firm, or corporation shall make application for a license or certificate, as provided in section 6043, and each and every year thereafter, to require from such person or persons an undertak- ing in such sum as may be fixed by the county court, not less than $1,000 nor more than $50,000, for the faithful perform- ance of their duties as bailee or l)ailees, as shall have been by law in such cases made and provided, which said license, or certificate, shall be issued by said county court for a period of not less than one year. Id. sec. 6044. Who may be sureties — Form of undertaking: — The sureties to any such undertaking may be either three or more residents of the county, who shall have the qualifications of bail upon arrest, or any surety company designated by statute as competent bondsmen on any official bond required by the state or any county thereof. Before any such license or certificate shall issue, for the purposes hereinbefore provided, such county court shall re- quire the applicant therefor to execute and deposit with the clerk of said court an undertaking, in substantially the following form : — Whereas has applied to the county court of the county of state of Oregon, for license to engage in the busi- ness of storing grain for compensation, or otherwise, within said county, under the laws of tlie state of Oregon; and whereas said county court has fixed the undertaking of said at the sum of $ ; Therefore, know all men by these presents, that (set forth the name of principal, and if corporation, where organized, and, if partnership, the names of partners), as principal, and as surety (or sureties), hereby undertake and agree, in con- sideration of the issuance of such license, that the said OREGON LAWS. 765 , herein above named as principal, will well and faithfully operate and conduct said business of storing grain for compensation, or otherwise, within said county in compliance with the statutes and laws of the state of Oregon; and, further, that the undersigned will pay to all or any person or persons, firm or firms, corporation or corpora- tions, aggrieved' by violation of the terms and conditions of this under- taking, all damages, immediate or consequential (not exceeding said sum of $ ), which may be sustained by reason of such violation. In witness whereof the parties have caused these presents to be signed and sealed this day of Id. sec. 6045. New undertaking may be required — On failure license re- voked and sheriff to take possession: — If the surety on any such bond shall become insufficient, at any time, said court shall require the principal thereon to give a new undertaking within such time as the court may direct, and if such new undertaking shall not be given within the prescribed time, license of such prin- cipal shall be revoked by the court, and such court shall order the sheriff of the county to take possession of the warehouse, and of the grain on storage therein belonging to any person or per- sons, whether for compensation or otherwise, and hold the same until the business of such concern shall be settled up and adjusted. Id. sec. 6046. Who may sue on undertaking: — In the event of a breach of the conditions of said undertaking, legal proceedings thereon may be brought jointly, or severally, by the persons damaged by said parties, and for such remedies as are indicated in said undertaking. Id. sec. 6047. County court to examine undertaking and enter approval or rejection of record: — The county court of sucli county shall examine such undertaking, and if the same shall be satisfactory to them, they shall api)rove the same by an order and cause such order and the undertaking to be entered in the commissioners' journal, and a copy thereof, duly certified to by the county clerk of the c(junty keepmg such records, shall be admitted and read in evidence in any court in this State with like force and effect as the original thereof. If such undertaking shall not be sat- isfactory, such c(junty court shall mark the same "rejected," and enter a record thereof on the journal, and shall immediately give notice thereof to the person, firm, or corporation signed as princi- pal thereon. Id. sec. 6048. "^t3 OREGON LAWS. Licensee to file annual statement of grain in store and rep- resented by outstanding receipts: — On the fifteenth day of June of each year eacli person, fnni or corporation licensed to operate a grain storage business witiiin such county, shall file, with the county clerk of the county within which such business may be conducted, a statement showing the quantity of grain in store, expressed in the language usual and customary in respect thereto, and also a statement of the quantity of grain repre- sented by outstanding warehouse receipts. Such statement shall be filed by the county clerk and safely kept for public inspection. Id. sec. 6049. Bailees engaging in business without license to forfeit $50 per day as fine to state: — Any bailee or bailees who shall engage, or attempt to engage, in the business of storing grain belonging to any other person or persons, whether for compensa- tion or otherwise, without first having procured a license or cer- tificate, as required by this act, shall forfeit to the State the sum of $50 for each and every day said bailee or bailees may be thus unlawfully engaged, which said forfeit shall be deemed a fine, and treated and collected in the same manner as are all other fines and penalties. Id. sec. 6050. Bailee defined: — For the purpose of defining this act the term "bailee" or "bailees" shall be construed to mean any person, firm, or corporation, or persons, firms, or corporations keeping, controlling, managing, operating any warehouse, flour mill, grist mill, or other place wherein. grain of any kind belonging to any other person or persons is received and kept in storage, whether for compensation or otherwise. Id. sec. 6051. Carriers, warehousemen, etc., entitled to liens: — Any person who is a common carrier, or who shall, at the request of the owner or lawful possessor of any personal property, carry, con- vey, or transport the same from one place to another, and any person who shall safely keep or store any grain, wares, merchan- dise, and personal property at the request of the owner or lawful possessor threof, and any person who shall pasture or feed any horses, cattle, hogs, sheep, 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 atten- tion he has bestowed, and the food he has furnished, and he may OREGON LAWS. 767 retain possession of such property until such charges be paid. Id. sec. 7452. Proceeding to enforce such liens: — If such just and reason- able charges be not paid within three months after the care, attention, and labor shall have been performed or bestowed, or the matrials for food shall have been furnished, the person having such lien may proceed to sell at public auction the property men- tioned 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 published 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 and expenses of keeping 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 warehouseman to sell more of any wool, wheat, oats, or other grain than sufficient to pay charges due said ware- houseman on such wool, wheat, oats, or other grain; and provided further, that if any such warehouseman shall sell, loan, or dispose of in any manner, without the consent of the owner thereof any such wool, wheat, oats, or other grain, he shall, for each and every such ofifense, 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. 7453. Special agreement not affected by preceding provisions: — The provisions of the last three sections shall not interfere with any special agreement of the parties. Id. sec. 7454. Consignee or bailee must enter description of property and date: — Whenever any personal property shall be consigned to or deposited with any forwarding merchant, wharf, warehouse, or tavern keeper, or the keeper of any dei)ot for the reception 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 description of such property, with the date of reception thereof. Id. sec. 7595. 768 OREGON LAWS. Consignee or bailee must notify owner, when: — If such properly sliall not have hcon left wilh such consij^^nce or bailee for the purpose oi hcinj; forwarded or disposed of according to directions received hv such consii^nee or bailee at or l-)efore the time of the reception tliereof, and if the name and residence of the owner of such property be known to the person having such property in liis possession, he shall immediately notify the owner, by letter directed to him and deposited in the jiost-office, of the reception of such property. /(/. sec. 7596. Person in possession may sell property, when: — If any such properly shall not be claimed and taken away within one year after the time it shall have been so received, the person having possession thereof may at any time thereafter proceed to sell the same in the manner provided in this chapter. Id. sec. 7597. Notice of sale, how given: — Before any such property shall be sold, if the name and residence of the owner thereof be known, at least sixty days' notice of such sale shall be given him, either personally or by 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 property shall cause a notice to be published containing a descrip- tion of the property for the space of six weeks successively in a newspaper 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. 7598. Proceeding when property not claimed: — 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 af^davit setting forth a descrip- tion of the property remaining unclaimed, the time of its recep- tion, the publication of the notice, and whether the owner of such property be know-n or unknown. Id. sec. 7599. Inventory and order of sale:— 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 OREGON LAWS. 769 made, and shall annex to such inventory an order under his hand that the property therein described be sold by any constable of the precinct where the same shall be at public auction. Id. sec. 7600. Sale by constable, notice of: — It shall be the duty of such constable receiving such inventory and order to give ten days' notice of the sale, by posting up written notices thereof in three or more places in such precinct, and to sell such property at public auction to the highest bidder, in the same manner as provided by law for sales under execution from justices' courts. Id. sec. 7601. Return of constable and fees: — Upon completing the sale, the constable making the same shall indorse upon the order aforesaid a return of his proceedings thereon, and return the same to the justice, together with the inventory and the proceeds of sale, after deducting his fees. Id. Sec. 7602. Justice to pay charges — Disposition of residue:— 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 balance, 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 there- with, 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. 7603. County treasurer to make entry of amount received : — The county treasurer shall make an entry of the amount received by him, and the time when received, and shall file in his office such statement so delivered to him by the justice. Id. sec. 7604. When owner may claim deposit: — If the owner of the prop- erty 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 evidence to the treasurer of the ownership of such property, he or they shall he entitled to receive from such treasurer the amount so deposited with him. Id. sec. 7605. Proceeds not claimed in five years belong to county: If tlie amount so deposited with any county treasurer shall not be claimed by the owner thereof or his legal representatives within 49 770 OREGCIN LAWS. the saitl five years, the same shall belong to the county, and may he disposeil of as tiie county court may direct. Id. sec. 7606. Sale of decaying or perishable property: — Property of a perishable kind, and subject to decay by keeping, consigned or left in luanner 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 before provided in this chapter ; Provided, that any property in a state of decay, or that is mani- festly liable immediately to become decayed, may be summarily sold by order of a justice of the peace, after inspection thereof, as provided in section 7600. Id. sec. 7607. Fees of justice and constable: — The fees allowed to any justice of the peace under the provisions of this chapter shall be $3.00 for each day's service; and to any constable, the same fees as are allowed by law for sales upon an execution, and ten cents a folio for making an inventory of property. Id. sec. 7608. When railroad track must be laid to warehouse: — When- ever any warehouse already built or may hereafter be built with- in one hundred and fifty feet of the main line of any railroad in this state, with side track graded and ties laid down without expense to the company owning or operating said road, and not less than three hundred tons of freight is stored in said ware- house ready for transportation, then it shall be the duty of the said railroad company to lay down the track, with the necessary connections and switches; and shall from time to time furnish suitable freight cars necessary for the removal of such freight, and shall transport freight in carload lots to or from said ware- house in regular order, as other freight is transported on said road, whenever notice shall be given to the agent of the company or person in charge of the nearest station thereon ; Provided, that said warehouses are so situated that trains can be started with the same power as in daily use on ordinarily straight and level track. Id. sec. 6902. Failure to comply with last section, penalty for: — If any company or corporation owning or operating any railroad in this state shall fail to refuse to comply with the provisions of this act, the person injured by such failure or refusal shall be entitled to recover against such railroad company, in any court having OREGON LAWS. 771 jurisdiction, a penalty of $300 for each week during which such neglect, failure, or refusal shall continue. Id. sec. 6903. Larceny by bailee: — If any bailee, with or without hire, including every mortgagor of personal property having possession of property mortgaged, or any purchaser or lessee of personal property, obtaining the possession thereof under a written or printed contract of conditional sale, providing that the title there- to shall not vest in the purchaser until the unpaid balance of the purchase price is wholly paid for, and before same is wholly paid for, shall embezzle or wrongfully convert to his own use. or shall secrete or conceal, with intent to convert to his own use, or shall injure, destroy, sell, give away, remove from the county where situated when obtained, without the written consent of such bailor or vendor, or shall fail, neglect, or refuse to deliver, keep, or account for, according to the nature of his trust, any money or property of another delivered or entrusted to his care, control, or use, and which may be subject of larceny, such bailee, upon conviction thereof, shall be deemed guilty of larceny and punished accordingly, and if any such bailee shall deceive grain of any kind from dififerent bailors, and mix the same and store it together in bulk in such case, in an indictment charging such bailee so mixing and storing grain with committing, with refer- ence to said grain, the crime defined and made penal in this section, it shall not be necessary to charge in said indictment or prove on the trial that the ownership of said grain is in more than one of said bailors. Id. sec. 1956. Above section construed: — In a prosecution under this sec- tion for larceny of wheat, the court said "The wheat having been delivered to and accepted by the defendant, constituted a bailment, and any exercise of dominion over it by him, incon- sistent with the claim of the owner, amounted to a conversion of the grain." State v. Humphrey. 43 Ore. 44. 58. Making false receipt or altering receipt of goods in ware- house: — If any person shall willfully or knowingly make or utter any receipt or other written evidence of the delivery into any warehouse, commission house, forwarding house, mill, store or other like buihling 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 «•- OREGON DECISIONS. tliereof, such person, upon conviction tliereof, shall be pun- ished by imprisonnicnt in the penitentiary not less than one year nor more than live years, or by im|irisonnient in the county jail not less than three months nur more than one year. Lord's Oregon Laws 1910, sec. 1960. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Commingling of grain: — Where grain belonging to different depositors is mingled with grain of like kind by a ware- houseman, the transaction between such depositors and ware- houseman remains a bailment. McBec v. Ceasar ct 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. JVyatt v. Henderson, 31 Ore. 48. Conversion — Mingling of grain does not constitute: — The mingling of grain by a warehouseman with that belonging to other depositors does not constitute a conversion thereof. Sears v. Abrams. 10 Ore. 499. Same — Consent of depositor to shipment by zvarehouseman: — If a warehouseman parts with property intrusted to his care without the consent, express or implied, of his depositor, sucii act amounts to a conversion. McBec v. Ceasar et al., 15 Ore. 62. Same — Custom of zvarehousemen of shipping grain at a cer- tain season in the year, no defense unless authorised by depos- itor: — A warehouseman who liad received a large quantity of grain belonging to dififerent 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 plaintifif knew it was the custom of the warehouseman to shi]) all the grain which he had in Store at a certain season of the year. fd. OREGON DECISIONS. '773 Same — Delivery pursuant to order of one not the owner: — • Where one who was not the owner of certain goods, which were stored in a warehouse, contracted to sell them to the defendant, and the warehouseman delivered the same pursuant 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 vendor. Velsian V. Lewis, 15 Ore. 539. Same — Warehouseman estopped to change position after suit brought: — In a suit against a warehouseman for the recovery of certain goods deposited with him or the value thereof, the defend- ant 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 deilver the goods was that there had been no payment or tender of storage charges. It was held that he was estopped to so change his position. JVyatt v. Henderson, 31 Ore. 48, following Anderson v. Portland Flour- ing Mills Co., Z7 Ore. 483. F. Carriers — Must accord shippers equal facilities: — When a rail- road company permits a warehouse company to erect on its right of way a warehouse for the storage of grain, and establishes a rule that all orders for cars to be used for the shipment of grain from these warehouses shall come through the warehousemen operating these houses, the warehousemen arc the agents of the carrier railroad company. It is the duty of the carrier to see that the warehousemen deal fairly with all shippers, themselves included, in ordering and distributing cars according to the respective shippers proportionate share, or the carrier should see to it directly, without the interposition of such agencies, that justice is done to all shippers according as its duty requires it to do. U . S. ex rcl Northzvestern Warehouse Co., v. Oregon R. & Nav. Co., 159 Fed. Rep. 975, 984. I. Commingling of grain — Loss to he borne in proportion to the amounts deposited: — Where a deficiency in the common mass of grain occurs without any fault of the depositors, the loss must 774 OREGON DECISIONS. tall upon all in the proportion which the amount of grain each IkuI deposited bore to the whole anunint deposited. The deposit- ors of grain wliich is thus mingled become tenants in common thereof and the several owners are compelled to sustain any loss pro rata which might occur by diminution, decay or otherwise. In order to make a depositor share in any such loss it is necessary that his grain be stored there at the time the loss occurs. If the warehouseman should deliver to any depositor a greater quantity 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 diminution, it would be a wrong- ful taking as well as a wrongful possession as against the other depositors. Brown v. Northcntt, 14 Ore. 529. Same — Depositors are joint ozvners: — Grain deposited in a warehouse and commingled, belongs to the depositors, who are tenants in common thereof, having such an undivided interest therein as the quantity stored by each bears to the amount depos- ited, and a court of equity will decree a recovery of the grain or apportion the loss pro rata among the joint owners. Tobin v. Portland Mills Co., 41 Ore. 269, 274. 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 em- ployees 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 out- side the depot. The acid was unloaded and as a result of a leak, the acid coming in contact with oil, an explosion and fire fol- lowed. On the above stated facts it was held that the defendant was guilty of negligence in the care and custody of plaintifif's goods and was liable therefor to him for their value. Farmers' Loan & Trust Co. v. Oregon Ry. & Nov. Co., 7?> Fed. Rep. 1003. OREGON DECISIONS. 775 Delivery by warehouseman zvithout order from owner — Liable for resulting damages: — Under a warehouse receipt which pro- vided that the grain represented would be delivered upon the return of the receipt and payment of storage and other enumer- ated charges a warehouseman delivered the grain to the depositor without the return of the receipt and against his consent. The delivery was made by the shipment of the grain by the warehouse- man to the depositor. It was held, the warehouseman was liable for all damages that would necessarily result from a breach of the agreement to keep the grain until called for but that this would not include expenses incurred by the depositor in unloading the grain from the cars. Diamond Roller Mills v. Moody, 125 Pac. 284; Affirmed on rehearing 126 Pac. 984. Q. 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 l^ind 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 — Represent the commodity: — A warehouse receipt for grain stored stands for and represents the property and its trans- fer is a valid transfer of the commodity itself. Adamson v. Frazier, 40 Or. 273, 276. Same — Title to commingled grain in zvarehouse remains in depositor: — Form of receipts considered, and held, that persons depositing wheat in warehouse did not part with the title there- to. Tobin V. Portland Mills Co., 41 Or. 269, 281, 284. Same — Requisites of negotiability prior to zvarehouse act: — Prior to the passage of the warehouse act the transfer of a ware- house 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. Prank & Koshland, 12 Ore. 507, distinguishing, Solomon v. Bushnell, 11 Ore. 277. Same — Issued by warehouseman to secure his own debt not valid unless property ivas in his possession at time of issuance: — <<» OREGON DECISIONS. C, a grain warehouseman, borrowed $1,000 of G and as security issued warehouse receipts ac^ainst i^^rain in his warehouse. Sub- sequently C cHed intestate and there was found to be a deficiency in tlie amount of wheat in the warehouse to satisfy warehouse receipts for wheat actually deposited. Held, that as there was a dcticicncy in the quantity of wheat that had been stored and should have been on deposit, thus showing there had been a violation of the statutes that the burden was on G to show that C owned the quantity of wheat pledged, and not having done so G failed in his proof. Though a warehouseman in the absence of statute to the contrary, may issue a warehouse receipt for his own goods in store, by way of sale, and confer an indefeas- ible title, yet, when he issues such receipt by way of pledge to secure his own debt, it is generally held that such a pledge is not good, as against subsequent bona fide purchasers of the goods unless there has been a valid actual or symbolical delivery thereof. Millioni V. Clozv, 42 Or. 169. Same — Negotiability — Not a negotiable instrument within the meaning of the mercantile laiv: — Section 4205 of Hill's Ann. Laws declares warehouse receipts to be negotiable and by the statute such receipts, regardless of their form, are made negoti- able in the sense that a transfer thereof by indorsement carries the absolute title to the commodity 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 assignment of an ordinary chose in action ; but the statute does not give to such receipts all the attributes of negoti- able paper. A transfer of the receipt by indorsement may oper- ate, under the statute, to transfer and vest the title of the goods in the purchaser, where before it would not, but the nature of the contract itself is unchanged. It is in no sense a negotiable instrument under the merchant law. It is simply a written acknowledgment by the warehouseman that he has received, and holds in store for the depositor, the amount and description of ];roperty named in the receipt, upon the terms and conditions therein stated, and is nothing more than a written contract between the parties, which by the statute is made negotiable for certain purposes. The word "negotiable" is evidently not used in tiie statute in the sense in which it is ordinarily applied to bills of exchange and promissory notes. Anderson v. Portland Flouring OREGON DECISIONS. 777 Mills Co.. 37 Ore. 483; State v. Koshland, 25 Ore. 178; Shaw V. R. R. Co., 101 U. S. 557. Same — Parol evidence admissible to sJiozv that person issuing snch receipt acted in the capacity of agent: — Warehouse receipts are not negotiable instruments within the meaning of the rule pro- hibiting the admission of parol testimony to charge one not bound upon the face of the instrument, but in that respect they are simply contracts and such evidence is admissible to show that, although executed by and in the name of an agent, they are in effect the contract of the principal, and that he is bound thereby. Anderson v. Portland Flouring Mills Co., 37 Ore. 483; Barbre V. Goodale, 28 Ore. 464. Same — True contract may be shozvn by parol evidence — When: — In an action for value of wheat sold, the plaintiff alleged that the warehouse receipt did not contain and was not intended or understood to contain, all the terms of the agreement. Held, that a receipt issued by a warehouseman, like other written con- tracts, cannot be varied or contradicted by parol, but when silent as to the terms of the contract, such may be shown by parol, and when its language is ambiguous or uncertain it must, like any other contract, be interpreted in the light of surrounding circum- stances. As the receipt was not signed by plaintiffs, it could not become a contract binding on them unless accepted as such. A mere delivery and acceptance would not make it a contract, if accompanied by a stipulation that it did not contain the agreement between the parties. Hirsch v. Salem Mills Co., 40 Ore. 601, 604. Same — Shotdd disclose the contract — Criminal proceedings: — A warehouse receipt for wheal should state the condition or quality of tlic wiieat deposited and the terms and conditions upon which it is stored. Quaere, As to whether or not an inform- ation would lie if receipt failed to contain these provisions. State V. Humphreys, 43 Ore. 44, 52, 60. R. Bill of lading—Not a contract:— As between the parlies thereto a bill of lading is not a contract in writing such as will protect the same against the introduction of parol testimony to contra- dict or vary its terms but il is l(j be regarded only as an admis- sion on the part of the consignor as to his purpose at the time of 77S OREGON DECISIONS. making the shipment, and such admission is subject to he rebutted. McBcc V. Ccasar ct al., 15 Ore. 62. T. Indictment of a tvarehouscman — Requisities: — 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 with operating 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; State 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 store. The statute under which he was indicted is entitled, "Act to regulate warehousemen, wharfingers, commission men, and other bailees, and to declare the efifect 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 pro- vides in efifect that all matters contained in the statute shall b'^ embraced in the title thereof. It was held that this contention could not be sustained; that this provision of the constitution should receive a liberal interpretation in order to promote, and not defeat, the beneficial purposes for which it was adopted. State y. Koshland, 25 Ore. 178. Receiver — May enforce warehouseman's rights: — A receiver appointed to take charge of warehouse properties of B is an officer of the court, and wheat in the warehouse, held under con- tract of bailment with B. passed into the receiver's possession, B having had possession of the wheat and having a lien for his charges, and for the cost of sacks furnished, the receiver was authorized to collect for the same. Tobin v. Portland Flouring Co., 42 Ore. 117, 121. PENNSYLVANIA LAWS. 779 CHAPTER XXXVIII PENNSYLVANIA LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Penn- sylvania. It took effect January 1, 1910, and may be found in Public Laws, 1909, p. 19, also this volume p. 1. To section 59 as contained in the Uniform Warehouse Receipts Act the following is added : The following acts of Assembly, namely : An act, entitled "An act relating to goods, wares, and merchan- dise in store and in transit, and to make receipts and bills of lading therefor negotiable," approved September twenty-fourth, one thousand eight hundred and sixty-six (Pamphlet Laws, one thousand eight hundred and sixty-seven, page one thousand three hundred and sixty-three) ; An act, entitled "An act providing that whenever it shall happen that a receipt given by a warehouseman, warehousing company, storage or deposit company, or wharfinger has be- come lost, mislaid, or destroyed, the court, on the petition of the owner of such a receipt, may, in its discretion, order that the goods, wares, merchandise, petroleum, grain, flour, produce, commodity, or other property, for which it was given, shall be delivered without the production or return of such receipt," approved May twenty-fifth. Anno Domini one thousand eight hundred and ninety-three (Pamphlet Laws, page one hundred and thirty-three) ; and all other acts, or parts of acts, inconsistent with this act, are hereby repealed. /hi Act. To prevent the issuing or transfer by any person, other than a warehouseman or ])crson controlling a place for storing of goods, of any paper in similitude of a warehouse re- ceipt, and prescribing ])unishnient therefor. Warehouse receipts, similitude of — Issuing or transfer of — Misdemeanor — Penaltv: — Section 1. Be il enacted. &c.. That 7S0 PENNSYLVANIA LAWS. if anv person. Iuiil or corporation shall issue, or shall pledge, sell, transfer, endorse, assign, deliver, or in any way pass, to another person. I'wm, or cor]H^ration llic title to, any paper, not issued by a wareluniscnian. person, lirni, or corporation owning or operating a warehouse or other place for the storing of goods, and not being a warehouse recei])t, Init made in the likeness or similitude as to design or contents of a warehouse receipt, and calculated to induce any person to believe such paper to be a warehouse receipt, and thereby shall obtain the signature of any person, firm, or corporation to any written instrument, or shall obtain from any person, firm, or corporation any chattel, money, promissory note, check, or other negotiable instrument or valu- able security — every such offender shall be guilty of a misde- meanor, and on conviction shall be sentenced to pay a fine not exceeding five thousand dollars and undergo imprisonment not exceeding three years, or either or both, in the discretion of the court. Approved— The 7th day of June, A. D., 1911. 1911 Public Laws, p. 701. Attachments of goods in the hands of bailees regulated — Holder of receipt to be deemed garnishee — Dissolution of attachment: — Whenever any goods, wares or merchandise shall have been or shall hereafter be attached by writ of foreign or other attachment, in the hands, possession or custody of any warehouseman, wharfinger or other person who shall have issued for the same, any warehouse receipt or voucher, or any bill of lading or other receipt, when in transit by car or vessel, which warehouse receipt, voucher, bill of lading or other receipt, shall have been negotiated and transferred by indorsement or delivery, 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 summoned 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 has issued, be added to the record of the action as a garnishee of the said PENNSYLVANIA LAWS. 781 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 merchandise should not be dissolved, or the proceeds thereof, if the same shall have been sold by the order of said court, paid to the holder of such ware- house receipt, voucher, bill of lading or other receipt, upon his giving security as such garnishee, by recognizance and sufficient sureties to be approved by the court, or by one of the judges thereof in vacation, with condition 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 merchandise 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 retained in the hands of said garnishee, to answer, if the plaintiff shall have execution of any judgment of the effects of the defendant in the action attached as afore- said or to abide the further order of the said court. 1874, June 13, P. L. p. 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, wharf- inger, carrier or other bailee, by writ of attachment, replevin or other legal process, such warehouseman, whariingcr, carrier or other bailee shall not be liable therefor to the owner of such goods, wares or merchandise, or to the holder of any receipt, voucher or bill of lading given for the same; saving and reserv- ing, however, to such owner or holder all legal remedies for the recovery of the said goods, wares or merchandise from any person unlawfully detaining the same, or for tlic recovery of damages against any person unlawfully taking tiie same. Id. sec. 2. Actions for property delivered by mistake: — Any carrier or other bailee of jjropcrly, who has i)artc(l 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 782 PENNSYLVANIA LAWS. property cannot be found, an action of assum])sit, or trover and conversion, against the party converting or removing it. In the case of replevin, if there was no fraud in obtaining such posses- sion, the phiintitT shall lirst tender to the defendant the freight or other proper charges which ha\e accrued, at the time of the demand of possession. 1881. Jwne 8, P. L. p. 86, sec. 1. Trustees (appointed by the court in domestic attachment proceedings) may, by warrant, cause houses, chests, etc., of defendant, to be broken open in daytime: — It shall be lawful for the said trustees, by warrants, under their hands and seals, to cause to be broken open in the daytime, houses, chambers, shops, stores or warehouses of the defendant, or any doors there- in, and any trunks or chests of the defendant, in which his goods or effects, books of account, or papers relating to his estate, shall be, or shall be reputed to be. and to seize the same for the benefit of his creditors. 1836, June 13, P. L. pp. 606, 612. § 26. Cold storage act: — On May 16. 1913. the following "Cold Storage Law" was approved and took effect August 16, 1913. Laws Penna., 1913. No. 153, p. 216. As shown below sections 14 and 15 were amended by act approved July 7, 1913. An act for the protection of the public health and the pre- vention OF FRAUD AND DECEPTION RY REGULATING THE STORAGE AND SALE OF COLD STORAGE FOODS, FIXING PENALTIES FOR THE VIOL.A.TION OF THE PRO- VISIONS THEREOF AND PROVIDING FOR THE ENFORCEMENT THEREOF. Section 1.— Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met and it is hereby enacted by the authority of the same: That this act shall be known and may be cited as the "Cold Storage Act of one thousand nine hundred and thirteen." Sec. 2.— The term "cold storage" as used in this act shall mean the storage of food at or below a temperature of forty degrees Fahrenheit in a cold storage warehouse. Sec. 3.— The term "cold storage warehouse" as used in this act shall mean an establishment employing refrigerating machinery or ice for the purpose of refrigeration or a place otherwise artificially cooled in which articles of food are stored for thirty (30) days or more at a temperature of forty degrees Fahrenheit or under. Sec. 4.— The term "food" as used in this act shall mean the fresh flesh of animals and fresh products therefrom, the fresh flesh of fowls, fresh food fish, eggs and butter which have been stored in a cold storage ware- house. Sec. 5. — The word "container" as used in this act shall be taken to mean any bag, band, barrel, basket, bottle, box, caddy, can, canister, carton, crate, firkin, hogshead, jar, jug, keg, stopper, vessel, wrapper, frozen bulk, or any similar or analogous utensil, receptacle, band, or wrapper in which food may be kept stored, sold or offered for sale. PENNSYLVANIA LAWS. 783 Sec. 6. — The word "marked" as used in this act shall be taken to mean written, printed, stamped or painted, or any other means whereby words or figures may be indicated in or on a container or on any cover attached thereto. Sec. 7. — The term "wholesome" as used in this act shall mean fit for human food. Sec. 8. — No person, firm or corporation shall operate a cold storage warehouse without a license issued by the Department of Agriculture through its ?gent, the Dairy and Food Commissioner. Such license shall be issued only on written application stating the location of such ware- house. Upon receipt of the application said Dairy and Food Commis- sioner shall cause an examination to be made into the sanitary conditions of such warehouse. If it be found to be in a sanitary condition and properly equipped for the purpose of cold storage the Dairy and Food Commissioner shall cause a license to be issued authorizing the applicant to operate a cold storage warehouse during the period of one year from the date of such license. No license shall be issued until the applicant therefor shall have paid to the Dairy and Food Commissioner the sum of fifty dollars ($50.00). A license shall be required for each separate ware- house building. Sec. 9. — Whenever any warehouse licensed under the provisions of this act or any portion of such warehouse shall be deemed by the Dairy and Food Commissioner to be in an unsanitary condition it shall be the duty of the Dairy and Food Commissioner to cause such warehouse or portion thereof to be closed until it shall be put in a sanitary condition. If such changes be not made within a reasonable time the Dairy and Food Com- missioner may suspend or revoke the license granted for the operation of such warehouse. It shall be unlawful for any person, firm or corpora- tion to operate any such warehouse or portion thereof when the same shall be closed by order of the Dairy and Food Commissioner. Sec. 10. — It shall be the duty of every person, firm or corporation that shall be licensed to operate a cold storage warehouse to keep an accurate record of the receipts and withdrawals of food therefrom. The agents of the Dairy and Food Commissioner shall have free access to such records at all times. It shall be the duty of each person, firm or corpora- tion licensed to operate a cold storage warehouse to file in the office of the Dairy and Food Commissioner on or before the sixth day of January, April, July and October of each year, a report setting forth in itemized particulars the kind and quantities of food products held in cold storage in such warehouse. The report shall be made on printed forms prepared and supplied by the Dairy and Food Commissioner. If in the judgment of the Dairy and Food Commissioner it shall be deemed better in en- forcing this act to cause reports to be made at more frequent intervals than herein required said Dairy and Food Commissioner may cause such reports to be filed in accordance herewith. Sec. 11. — It shall be unlawful for any person, firm or corporation, to place in any cold storage warehouse, to keep therein, or to sell, offer, or expose for sale any diseased, tainted or otherwise unwholesome food. Sec. 12. — It shall be unlawful for any person, firm or corporation to place in any cold storage warehouse any slaughtered animals or parts thereof unless the entrails and other offensive parts have been first properly removed. Sec. 13. — It shall be the duty of the Dairy and Food Commissioner to cause to be mafic a careful inspection of all cold storage foods with a view to determining whether the same arc wholesome. Such inspection shall be made where such food is stored and each package of such food so inspected shall bear the marks, stamps, or other device for identifica- tion provided for in this section. 784 PENNSN I.\ AMA LAWS. It shall bo the duty of tlic Dairy and [''uod Loininissioncr to make sucli rules and regulations as he may deem proper relating to such inspection and supervision and to tlie cold storage of food and otlierwisc to secure the prt>per enforcement of this act. Duly authorized agents of the Dairy and l'\iod CommissiiMier may at any reasnnalile tinic enter siicli ware- house and inspect the same. Sec. 14. All food when deposited in cold storage warehouses, shall have plainly marked upon the container the date that such food shall be placed in such warehouses. If such food be not in a container, sucii marking shall be on such food, or on a tag or label securely and perma- nently attached thereto. Such food, or the container thereof, shall have marked plainly thereon the date of withdrawal of such food from such warehouses. The marking of food, in accordance with the terms of this section, shall be under such regulations as may be prescribed by the Dairy and Food Commissioner. When fish are deposited in a cold storage warehouse it shall be lawful to mark upon the zvalls or door of the room in such warehouse, where the fisli are stored, the month and year zvhen such fish are therein stored. When such fish arc withdraivn from such zuarchousc, the month and year of the storage of such fish shall be plainly marked on t c container in which such fish are packed. As amended by Act approved July 7, 1913, No. 388 Public Laws, 1913, p. 689. Sec. 15. It shall be unlawful for any person, firm, or corporation, or any agent thereof, to sell, or ofifer or expose for sale, or have in possession with intent to sell, at wholesale, any food which is not marked and distin- guished on the outside of each container, in a conspicuous place, by a placard with the words "wholesome cold storage food" printed thereon; such placard to be placed in a conspicuous position, in full view of the purchaser ; and the words "wholesome cold storage food," on such placard, shall be printed in plain, uncondensed gothic letters, not less than one-half (^) inch in length; and, in addition, all such food shall be marked with the date when it is placed in any such cold storage warehouse, and with the date when it is withdrawn from such cold storage warehouse. In the case of fish, the date of first placing in a cold storage warehouse shall be the month and year when so first placed, and the date of withdrawal shall be the exact date of withdrawal. There shall also be displayed upon every open container containing such food, in the same manner, in a conspicuous position, a placard with the words "wholesome cold storage food" printed thereon, in the same form as above described in this section; and when such food is sold from such container, or otherwise, at retail, before being delivered to the purchaser, it shall be wrapped in wrappers plainly stamped on the outside thereof with the words "wholesome cold storage food," printed or stamped thereon in letters one- fourth {%) inch square, and such wrapper shall also contain the date of first placing such food in cold storage; and the said words "wholesome cold storage food," and the date of first placing such food in cold storage so stamped or printed on said wrapper, shall not be in any manner concealed, but shall be in plain view of the pur- chaser at the' time of the purchase. In the case of fish, the date of first placing in a cold storage warehouse shall be the month and year when so first placed. As amended by Act approved July 7, 1913. No.. 388 Public Laws, 1913, p. 689. Sec. 16.— No person, firm or corporation shall sell, oiYer or expose for sale any of the herein named foods which shall have been held for a longer period of time than herein specified in a cold storage warehouse or warehouses, to-wit : Whole carcasses of beef or any parts thereof, four (4) months. Whole carcasses of pork or any parts thereof, six (6) months. Whole carcasses of sheep or any parts thereof, six (6) months. Whole carcasses of lamb or any parts thereof, six (6) months. Whole carcasses of veal or any parts thereof, three (3) months; dressed fowl PENNSYLVANIA LAWS. 785 drawn, five (5) months; dressed fowl undrawn, ten (10) months; eggs, eight (8) months; butter, nine (9) months and fish, nine (9) months. Sec. 17. — After food has been withdrawn from a cold storage ware- house for the purpose of placing it on the market for sale it shall be unlawful for any person, firm or corporation to return such food, or any portion thereof, to such warehouse, or any other similar warehouse. Subject to such regulations as shall be prescribed by the Dairy and Food Commissioner, food may be transferred from one cold storage warehouse to another provided that the total length of time such food shall remain in cold storage for the purpose of sale shall not exceed the time specified in section sixteen (16) of this act. Sec. 18. — No food shall be sold or oflFered or exposed for sale in this State which shall have been placed or stored in any cold storage ware- house outside of this State unless it first shall have been marked as pro- vided for in section fifteen (15) of this act. Provided, however, that no such food shall be sold or offered or exposed for sale in this State if the total length of time that such food has remained in cold storage shall exceed that specified in section sixteen (16) of this act. Sec. 19. — It shall be unlawful for any person, firm or corporation to mark or cause to be marked any container of food with a mark or marks other than those required by this act to be marked on such food or con- tainer. It shall be unlawful for any person, firm or corporation to change or cause to be changed any mark or marks on any food or container after such mark or marks have been placed thereon. Provided, that nothing in this section shall apply to the marking of such container with the name and address of the ovi^ner thereof. Sec. 20.— Nothing in this act shall be construed to prohibit the shipping, consigning or transporting of fresh food in properly refrigerated cars within this State to points of destination nor when received to prohibit the same being held in a cooling room for a period of forty-eight (48) hours, and provided further, that nothing in this act shall be construed to prohibit the keeping of fresh food in ice-boxes or refrigerators in retail stores while the same is offered or exposed for sale. Sec. 21. — It shall be the duty of the Department of Agriculture, through its Dairy and Food Commissioner, to enforce all of the provisions of this act and to make all rules and regulations not otherwise herein provided necessary for the enforcement of the same. Sec. 22. — That all license fees and fines and penalties imposed and re- covered for the violation of any of the provisions of this act shall be paid to the Dairy and Food Commissioner or his agent and when so collected and paid shall thereafter be by the Dairy and Food Commissioner paid into the State Treasury for the use of the Commonwealth, in accordance with the provisions of this act. Sec. 23. — Any person, firm or corporation that shall violate any of the provisions of this act shall be guilty of a misdemeanor and upon convic- tion thereof shall be sentenced for the first offense to pay a fine not exceeding five hundred dollars ($500.00), and for the second and each subsequent offense such person, firm or cororation shall be sentenced to pay a fine of not more than one thousand dollars ($1,000), and in addi- tion thereto such person or the members of such firm or the officers of such corporation as the case may be with guilty knowledge of the fact may be sentenced to undergo imprisonment in the jail of the proper county for a period of not more than ninety (90) days or both at the discretion of the court. Sec. 24. — All acts and parts of acts inconsistent with the provisions of this act are repealed. Sec. 25.— This law shall take effect ninety (90) days after its final passage. 50 786 PENNSYLVANIA DECISIONS. On May 20, 191o. the following act was approved, No. 170, Public Laws, 1913, p. 246: An Act making; it a misdemeanor for the keeper, owner, pro- prietor, or any per.^on in chars^c of any storage or warehouse, pawn-shop, second-hand store, or junk shop, to conceal from any constable or sheriff, entrusted with the execution of any writ, the wliereabouts of goods and chattels in their possession, belonging to another ; defining what shall be evidence of such con- cealment, and providing a penalty therefor. Section 1. Be it enacted, etc.. That it shall be unlawful for any person, hrm. or corporation, being in possession of goods and chattels of any description belonging to another, either as storage or warehouseman, pawnbroker, second-hand dealer, or junk-dealer, to conceal from any constable or sheriff, entrusted with the execution of any writ, any such goods or chattels, with intent to prevent any such goods or chattels from being taken or levied upon under any such writ. Sec. 2. The refusal to disclose or point out to any such con- stable or sheriff the whereabouts of any such goods or chattels shall be evidence of the intent to conceal such goods and chat- tels, as provided for in section one of this act. Sec. 3. Any keeper, owner, proprietor, or any person in charge of any such storage or warehouse, pawn shop, second hand store, or junk shop, who shall violate, neglect, fail, or refuse to comply with all of the provisions of this act, or any of them, shall be guilty of a misdemeanor and upon conviction before any court of competent jurisdiction be sentenced to pay a fine not exceeding five hundred dollars ($500), or undergo an imprison- ment of not more than one year, or both, at the discretion of the court. 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 he acts in good faith, he is not answerable to another who advanced money Note: For statutory requirements in regard to the construction of warehouses and other buildings and inspection thereof see Pepper and Lewis Digest 2nd Ed. Vol. I, pp. 809 to 833, 1906, Sec. 460 and 1919 Sec. 485. PENNSYLVANIA DECISIONS. 787 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 busi- ness 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. 62>7. Same — 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. Warehouseman — Definition:— K warehouseman is one who re- ceives and stores goods as a business for a compensation or profit. There is nothing in the Act of September 24, 1866, P. L. (1867) 1363, requiring him to hold himself out to the general public as such. National Union Bank v. Shearer, 225 Pa. 470, 485. Ordinary care — Liable for negligence: — A bailee for hire is bound to exercise ordinary care and diligence 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. 106; McCarty v. A^. Y. & E. R. R. Co., 30 Pa. St. 247. Delivery — To a ivarehouseman — 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 in the evening, just about dark, when the defendant's warehouse was closed and locked for the night, that the dray- man of the plaintiff opened the upper door and put the goods in, there being no one the grounds in charge of the warehouse and no one there representing the company to receive the goods. There was further evidence which showed that the drayman had, shortly after he deposited the goods as above stated, called out to tlu' hill clerk of the railroad that lie harl left some goods of llic plaintiff's and that he wanted the clerk to bill ■A^^^\ ship them the next 788 PENNSYLVANIA DECISIONS. luornini:^. lliis was not addressed to the sliippinjj^ clerk nor to the freight agent. Furthermore, the drayman knew that the bill clerk was not. in fact, that day on duty. Held this was not a delivery to an authorized agent of the defendant and therefore the defendants were not liable. Spoffoni v. Railroad Co., 11 Super. Ct. 97; Lcidv v. Quaker City, etc.. Warehouse Co., 180 Pa. St. 323. Conversion — When donaiid and refusal unnecessary: — Ordi- narily a sufficient demand and a refusal are both essential to con- stitute 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. Hanlon, 103 Pa. St. 504; Hinckley v. Baxter, 13 Allen, 139. Safe deposit boxes — Contents not subject to attachment: — The contents of a safe deposit box are in the custody of the one rent- ing the box and not of the company. They are not subject to attachment under the laws of this state. Gregg v. Hilson, 8, Phila., 91. F. Carrier — Warehouseman becomes such and hence an insurer by agreeing to haul goods for the public: — A warehouseman en- gaged as well in the business of moving or hauling household goods, and holding himself out to the public as such, held to be a common carrier and consequently liable for loss of household goods which he undertook to haul, which goods, while on the wagon, were destroyed enroute by fire from an unknown cause. Lloyd V. Haiigh, 223 Pa. 148. H. Storage charges — Assignee of zvarehouse receipt liable for: — Where warehouse receipts for goods are assigned and the ware- houseman notified of the assignment, he may recover from the assignee of the receipt the amount of the charges from the date of the assignment. Rhoads v. Walsh, 48 Pa. Super. Ct. 465. l^lgfi — Specific and not general in its nature: — A warehouse- man 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 PENNSYLVANIA DECISIONS. 789 charges on all the goods received by him under the same bail- ment, provided the ownership of the whole is in the same bailor. Steinman v. Wilkins, 7 Watts & Sargeant, 466. (See note given with this case in 42 Amer. Dec. 257.) Same — Property stored by tortious bailee — Warehouseman cannot hold property for storage charges as against true owner: — The lessee of a piano sold under conditional sale contract stored same with a warehouseman under fictitious name. In a replevin suit by piano company (the real owner) for posses- sion, held, that the warehouseman acquired no lien and has no right to retain possession of piano to enable him to collect the storage charges therefor from the real owner ; and that such owner was entitled to piano. Estey Co. v. Dick, 41 Pa. Super Ct. 610. K. Attachment — Warehouseman may be made garnishee — Enti- tled to protection by bond if negotiable receipts have been issued: — If a warehouseman has issued negotiable warehouse receipts for goods deposited with him and he is made garnishee in a suit against his depositor, he is entitled to a bond from the plaintiff indemnifying him against any loss which he might suffer owing to negotiation of the receipts into the hands of bona fide holders. Rondebush v. Mollis 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 re- ceipt, 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 warehouse receipt within the meaning of the statutes of this state, to one who had deposited property with him. .\t the time of the issuance thereof the attorney of the pledgor stated to the warehouseman's foreman 790 rF.NNSVI.VANIA OF.rTSTONS. that the receipt was to ho used for the purpose of borrowing money thereon and in liis presence indorsed tlie receipt as follows : "Please deliver inclosed pit^-iron to W. II. Taher, Ksqre., cashier, or order. "Henry G. Morris, "Per Alexander Irwin, Att'y," In an action brought l)y the l)ank with which tlie receipt had been pledged, against the defendant warehouseman, it was held that tlic 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 security for a loan, but it did neither of these things, and that the loss was the resulting consequence. People's Bank v. Etting & Groome, 108 Pa. St. 258. Same — Goods remaining on demised premises subject to dis- tress for rent: — A furnace company manufactured a quantity of pig iron and piled it in a section of the yard of its premises, which section had been leased to a warehouse company. The warehouse company ran a wire fence around the material, but no notice of the sub-letting was given the landlord of the furnace company. The warehouse company issued its negotiable war- rants for the iron on storage. Held: that the landlord had a right of distress for rent against the iron which was valid against the holders of the warrants. America): Pig Iron Storage ]V ar- rant Co. v. Sinnemahoning Iron & Coal Co., 205 Pa. 403. Injury by zvater — Evidence — Instruction to jury: — The plain- tiff, the owner of certain household goods, sued the defendant, a warehouseman, alleging that the same had been injured by dampness during the time when they were stored. The de- fendant contended that the goods were so damaged before he received them and offered evidence to show that his warehouse was impervious to rain. The defendant then requested the court to instruct the jury to find for him ; this was refused, the ques- tion of negligence being left to the jury, a verdict was found for the plaintiff. The defendant took a writ of error upon which PENNSYLVANIA DECISIONS. 791 the judgment of the lower court was affirmed. Doyle v. Mays, 7 Atl. Rep. 747. N. Loss by fire — Negligence must he 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 the defendant. Tower et al. v. Grocer's Supply & Storage Co., 159 Pa. St. 106. Safne — Same — Instructions to jury: — The plaintifi" who had stored goods with the defendant warehouseman alleged that at the time of the storage she had instructed the assistant in the office of the defendant to have the goods insured. Plaintifif 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 goods. It was contended l\v the warehouseman that as the proofs failed to show essential elements of parol contract to insure, no agreement was proved. It was held that as the defendant was engaged 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 requiring 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, therefore held not to be error. Id. Same — Pleading — Insufficiency of declaration: — The plaintiff sued the defendant, a warehouseman, for goods which he alleged were destroyed by fire while stored in the latter's warehouse. The declaration failed to state that there was any contract be- tween 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 was a bailee for hire. Tiic demurrer to such a declaration was sustained willi leave to amend. Heaton v. Knozvles. 14 W. N. Cas. 74. 792 PENNS\1.\ AMA Dl'.llSlONS. Cold storiu/c — Danuujc to yoods — Ihirdcii of proof: — In an action against a wareliouseman for the recovery of the value of eggs alleged to have been injnrcil 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 l\v liis act alone, because if they were injured l\v any dther act such as inherent decay, etc.. the de- fendant was not responsible ; further that the plaintiff 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 shozvn — Question for the jury: — The defendant warehousemen were sued for the value of certain poultry which the plaintiff alleged had been spoiled while stored in their cold storage warehouse. The court instructed the jury that the whole case turned upon the question as to who had caused the injury to the poultry. That if they found that the defendants had exercised due care in its preserva- tion, or that the poultry was not in good condition when brought to the warehouse of the defendant that their verdict should be for the defendant. Further, 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 negligent acts or omissions must be conclusively proved. The court also charged that if the injury to the poultry resulted from any other cause than the negligence of the 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 de- fendants from the charge that the i)oultry was spoiled through their negligence. Verdict was given for the plaintiff, and on appeal it was held that the above charge was correct, as the jury had had the question to determine as to whether the loss and injury suffered by the plaintiff was occasioned exclusively by the acts or omissions of the defendants. Leidy v. Quaker City C. S. & W. Co., 180 Pa. St. 323. PENNSYLVAXIA DECISIONS. 793 Evidence — Negligence — Burden of proof on plaintiff: — In an action against one liable as a warehouseman for the loss of goods destroyed by fire, the burden is upon the plaintiff to show that the fire was the result of the defendant's negligence. 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 somebody 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. Hoeveller et al. v. Myers et al.. 158 Pa. St. 461. Bill of sale passes title to personal propertv and warehousemen may deliver goods to vendee: — Plaintiff executed to M. a valid bill of sale absolute on its face for certain household goods and afterward stored the goods wnth defendant. Subsequently M. presented the bill of sale and defendant permitted him to take the goods and also four additional items of personal property not mentioned. Held, that defendant was not liable in trespass for permitting removal of first named goods, but was liable for the four additional items. Klein v. Patterson, 30 Pa. Super. Ct. 495. Claim for breach of contract to redeliver goods may he made in defense of suit for charges: — Action by warehouseman for price of hauling, cleaning and storage of goods. Defendant owner claimed a failure by plaintiff to return a portion of the property taken out of his possession the value of which was greater than plaintiff's bill. Held to be a sufficient affidavit of defense. Parker v. Shoemaker, 46 Pa. Super. Ct. 99. O. Measure of damage — Household goods: — The true measure of damage in cases of this character (household goods and personal api:>arcl ) is compensation. The market price of an article is only a means of arriving at compensation; it is not in itself the value of the article, but is evidence of value. The just rule of damages is the actual value of the thing destroyed to him who owns it; taking into account its cost, the practical^ility and expense of replacing it, and such other considerations as in the particular TiU PENNSYLVANIA DECISIONS. case afToct its value io the owner. Lloyd v. Haugh, 223 Pa. 148. 157. Q. Jl'archoitsc rcccif^ts — .1///.^/ be issued by a warehouseman — He must have possession of the property: — A per.son in charge of a warehouseman's wharf, or a warehouseman's clerk, cannot issue a \ali(.l warehouse receipt. In such a case the person attempting to issue the receipt is in charge of the goods, it is true, l)ut he has not possession as required 1)y the act of September 24, 1866; he holds for another, — his employer. People's Bank v. Gayley, 92 Pa. St. 518; Bucher v. Commonwealth, 103 Pa. St. 528; Moors V. Japode. 105 Pa. St. 163; People's Bank v. Gayley, 9 W. N. Cas. 49. Sa)ne — Same — Delivery: — A writing which by express lan- guage or by fair implication therefrom understood in the light of the circumstances under which and of the intent with which the instrument w^as issued, involving an acknowledgment by the signer of his possession of designated goods of another on storage and an obligation to deliver them to a specified person, or to his order, or to bearer, on the return of the instrument, will con- stitute a negotiable warehouse receipt, and its delivery, even without endorsement will transfer the title to the named goods. National Union Bank v. Shearer, 225 Pa. 470, 475, 481. Same — Same — Goods must not belong to him: — The stat- utes of this state regarding the issuance of warehouse receipts are in derogation of the common law and establish an excep- tion to the general course of business which is conducted on the presumption that the title of personal property 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 ware- houseman must be regularly engaged in the business of ware- housing. Tradesmen's Nat. Bank, etc., v. Kent Mfg. Co., Ja- gode et al, 186 Pa. 556; Moors v. Jagode, 195 Pa. St. 163; People's Bank v. Troutman, 9 W. N. Cas. 54. Same — Revenue ta.v 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 PENNSYLVANIA DECISIONS. 795 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. Affirmed, 115 Fed. 295. Same — Negotiability — Batik holding as collateral a bona fide holder: — A warehouse receipt which states "this certificate is transferable 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 money loaned, it is not only a holder for value but also a bona fide holder of the receipt. Exchange Bank v. Uhlman-Goldsborough Co., 5 Pa. Dist. Rep. 480; Miller v. Browarsky, 130 Pa. St. Rep. 372. Same — Sale or pledge of bonded warehouse receipts transfers property interest: — A distilling company stored certain whiskey in its U. S. bonded warehouse and issued its own receipts for same. These receipts were deposited as collateral for a note, giving pledgee power to sell the receipts upon default of payment of the note. In action by Trustee in bankruptcy, held, that an innocent purchaser or pledgee of a bonded warehouse receipt secures a good title to the whiskey without taking actual posses- sion. In re Miller Pure Rye Distilling Co., 176 Fed. 606. Af- firmed in Taney v. Penn Bank, 187 Fed. 689, 703. 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 lie enjoys only such rights as the assignor had. Therefore wliere one who had deposited goods in a warehouse and pledged some of the receipts therefor witli a hank as security for a 1(jan, 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 depositor had withdrawn some of the goods deposited and PENNSYLVAiN'IA DKCISIONS. substituted others in the place tliereof. Brooks. Miller & Co. v. Western National Bank, 16 W. N. Cas. 298. Same — Same — Drawn in blank — Transfer zvithoiit cndorsc- moit: — Where the parties so intend the delivery of warehouse receipts drawn in blank, without endorsement passes title to the property represented. Sloan v. Johnsoji, 20 Pa. Superior Court Reps. 643. Sa)ne — Issued by debtor against his oxvn goods — Change of possession essential — Creditors protected: — A milling company issued warehouse receipts (called "certificates") on barrels of flour stored in the basement of its warehouse and on grain in its tanks. The "certificates" were pledged as security for loans. It was held, following Security Warehousing Co. v. Hand, 206 U. S. 415, that a man cannot make a warehouseman of himself as to his own goods. That there having been no sufficient change in possession of the property to constitute a valid delivery, there was not a valid pledge and that the trustee in bankruptcy was entitled to the property as against the holders of the so-called warehouse receipts. Fourth Street Natl. Bank v. Millbourne Mills Co.'s Trustee, 172 F. 177, 181. Same — Holding oneself out as a zvarehouseman — 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 pul)lic has a right to deal with them as such and the effect of the issuance of such receipts con- stitutes 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. Rosenham v. Batjer, 154 Pa. St. 544. Same — Same — Delivery of goods in settlement of an ante- cedent debt not a sale as will defeat pledgee: — Certain goods were consigned to the plaintiff bank which 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 held them simply as pledgee and the goods were delivered to the consignee. The bank delivered these evidences of title and took in return a storage receipt. PENNSYLVANIA DECISIONS. 797 which however allowed the consignee 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 power would divest the bank of its title. The defendants were customers of the consignee and had sent to him a check in payment 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 upon which the plaintiff bank had loaned money to the consignee. In the action brought by the bank against 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 affirmed on appeal. Canadian Bank v. Baiim & Sons, 187 Pa. St. 48; Brown Bros. & Co. v. BilUngton, 163 Pa. 76. Same — Same — Distiller's certificate — Indorsee estopped: — -The defendants had indorsed distiller's certificates for a quantity of whiskey to the purchaser thereof who subsequently transferred the same to the plaintiff. The defendants afterwards attached the whiskey while in the warehouse in an action against the pur- chaser. The plaintiff brought an action against the defendants alleging that the defendants were estopped from raising the ques- tion as to the title of the plaintiff by the fact that they had indorsed the certificates and that as a result thereof tiic plaintiff had obained possession of them. This held to ])e correct and judgment given for the defendant was affirmed. Rosenham v. Batjcr, 1.S4 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 possession 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, there- 79S PENNSYLVANIA DECISIONS. fore, llic consignee fraiululciUly obtained possession of an original hill of lading which was attached to a draft and presented to him for acceptance bv a messenger from the bank, who afterwards sold the original bill of lading, it was held that the title to the goods remained in the bank. The court further held that it was not the intention of the legislature when it declared that bills of lading should be negotiable by indorsement in the same manner as bills of exchange, that the nature and character of bills of lading was thereby put in all respects on the footing of instruments which are the representatives of money, commonly known as •'negotiable instruments." Shaiv v. Railroad Co., 101 U. S. 557. Same — Delivery passes title to property: — Where the intention of the parties is clear, the delivery of a bill of lading without formal endorsement transfers the title to the goods, the same rule applies to warehouse receipts, and holder may maintain action upon them. Sloan v. Johnson, 20 Pa. Super. Ct. 643, 648. RHODE ISLAND LAWS. 799 CHAPTER XXXIX RHODE ISLAND. LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Rhode Island. It took effect July 1, 1908, Pub. Laws 1908, Ch. 1549, p. 99. With the exception of the three last sections, the act is incorporated in the General Laws of Rhode Island, 1909, Title XXVIII, consisting of chapters 267 to 271 inclusive. Also this volume, p. 1. 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 mix- ture of naphtha or inflammable 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 inflam- mable 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 pub- lished in some newspaper published in or nearest to the town where such offence was committed. General Laws, Rhode Island. 1909, Ch. 170, sec. 1. Duties of the inspector of kerosene: — The inspector of kero- sene shall inspect and test all petroleum oil, kerosene and coal oil and their compounds and every product or mixture thereof which may be manufactured, offered for sale or stored in the state, and every inspector shall legibly mark upon every cask, barrel or pack- SOO KlU)l)i: ISLAND LAWS. age so tested by him tlie 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 pro- visions of this chapter, shall pay to the inspector who shall iiLspect the same the sum of one dollar for every hour employed in such inspection, except in the city of Providence, where the inspector shall be paid in lieu of the foregoing, eight cents for every barrel of oil inspected in the barrel and four cents for every fifty gallons of oil in tanks or other receptacles inspected in bulk. fd. Sec. 2. Not to apply to sale for exportation, manufacturing, me- chanical, heating or lighting purposes under "blowpipe sys- tem": — Nothing contained in the preceding two sections shall be so construed as to apply to the sale or keeping for sale of crude oil, fuel oil, gas oil, naphtha, benzine or gasoline, or any other product of petroleum for exportation from the state or for manu- facturing, mechanical, or chemical purposes, or for lighting or heating purposes under the blowpipe system. Id. sec. 3. How to be kept for sale or stored — One hundred and fifty gallons; ten barrels; exceeding one hundred barrels: — Petro- leum oil or any of its products or the compounds thereof that are not inflammable or which do not flash at a less temperature or fire-test than one hundred and ten degrees Fahrenheit, may be kept on sale or stored in the state in the following manner only and subject to the terms and conditions hereinafter named, namely: In quantities not exceeding one hundred and fifty gal- lons, in any store or warehouse ; in quantities exceeding one hun- dred and fifty gallons and not exceeding ten barrels, in cellars at least four feet below the surface of the street, properly ven- tilated, and under buildings no part of which is occupied as a dwelling house; in quantities exceeding ten barrels and not ex- ceeding one hundred barrels, in warehouses constructed of brick, stone or iron especially adapted to that purpose; in quantities exceeding one hundred barrels, in warehouses constructed of brick, stone or iron situated more than fifty feet distant from the nearest building or wharf, or, if within fifty feet from the nearest building or wharf, there shall be a wall of brick or stone between said warehouse and such building or wharf at least ten RHODE ISLAND LAWS. 801 feet high and sixteen inches thick; and all such warehouses shall be so constructed and arranged that no overflow or escape of the articles therein stored beyond the limits thereof can possibly take place. Id. Sec. 4. Inspectors to examine the premises where petroleum oil is stored: — The inspectors of kerosene shall examine from time to time all premises within their respective towns wherein petro- leum oil or any product thereof or any mixture of naphtha or inflammable fluid for illuminating purposes is stored or kept, and the owners and occupants of all such premises shall allow every inspector of kerosene at all times to enter upon and inspect such premises. Id. Sec. 5. Petroleum oil, etc., not to remain in open air or on sidewalk: — In no case shall petroleum oil or any product thereof or any mixture of naphtha or inflammable fluid for illuminating purposes 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, shipment or delivery of the same, nor between the time of sunset of any one day and sunrise of the following day. Id. Sec. 6. Penalty for violating provisions of chapter, or meddling with official brand: — Every person who shall violate any of the foregoing provisions of this chapter or shall knowingly or wilfully alter, efface or destroy any official mark or brand after the same has been placed by the inspector of kerosene or his 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. 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 accordance with the provisions of this chapter, shall be fined not less than five hundred dollars nor mure than one thousand 51 802 RHODE ISLAND DECISIONS. dollars, or shall be imprisoned m)t exceeding six months; and the name of every person convicted of any violation of this sec- tion shall be published in some newspaer published in or nearest to the town where such offence was committed. /(/. Sec. 8. Inspectors of petroleum, etc., to be appointed — Manner of storing may be prescribed by ordinance, with what penalties — Vacancy, how filled: — Vhe 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 storing 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, compounds and com- ponents and other like explosive substances, notwithstanding any provisions hereinbefore contained, and may inflict fines and pen- alties for the violation of such ordinances, not exceeding for any one offence two hundred dollars' fine and six months' imprison- ment. 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. Sec. 9. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Reasonably safe building: — Plaintiffs stored car- riages in defendant's barn and paid storage therefor. The car- riages were injured by the falling of the roof of the barn, due to its being overloaded with snow. Held that defendants were bound to furnish a building which was reasonably 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 dis- covered by the use of ordinary care. Moulton & Remington v. Phillips & Sheldon, 10 R. I. 218. C. Safe Deposit Boxes — Contents liable to attachment: — A sheriff charged with the service of a writ of attachment or an execution RHODE ISLAND DECISIONS. 803 would have authority to attach or to levy upon a sealed parcel in a safe deposit box belonging to the defendant, if he was able to find the same within his precinct, to open either of them to inventory the contents, and if the same were taken upon execu- tion, to sell sufficient of the contents, not exempt from attach- ment, to satisfy such execution. Tillinghast v. Johnson, 82 Atl. 788. H. Storage charges — Storing merchandise for railway company — When company not liable for charges: — A common carrier stored in a warehouse merchandise at different 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 carrier, the name of the consignee when marked on the goods, and the amount of freight charges paid ; in a few instances the receipt of the goods from the carrier on account of the consignee ; and in one or two instances the receipt of the goods from consignee or owner. Held that the non-negotiability of the receipts 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 receipts and the actions of the parties showed their understanding to be that the warehousemen 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 the law requires us to exercise — which it exacts as a duty. This care may be due to one individual and not to another, and therefore negligence in fact is not always negligence in law, for unless a party can show that some duty to him is violatcfl, he shows no legal negligence. Tower v. Provi- dence & W. R. R. Co., 2 R. I. 404; Blyth v. Topham, 1 Cro. J. 158. O. Damages — Measure of: — The value of goods, converted by a warehouseman, at the time of the conversion is the measure of 804 RHODE ISLAND DECISIONS. damages. Fifth Wit. fnvik v. Providence Warehouse Co., 17 R. I. 112. Q. Warehouse receipts — Liability ':cheii goods delivered without return of — Demand: — A. procured a loan from the F. Bank, giving as collateral security a warehouse receipt as follows: "September 28, 1888. Received on storage of A. & Co., subject to the order of the F. Bank, three hundred and ninety cases of eggs. To be delivered according to the indorsement hereon, but only on the surrender and cancellation of this receipt, and on payment of the charges payable thereon." Across the face of the receipt was the word "Negotiable." The cases bore distin- guishing marks. On November 1, 1888, the warehouseman de- livered these cases to A. On March 11, 1889, the F. Bank brought assumpsit against the warehouseman for the value of the eggs, as A. had made default in the payment of his note. Held that the F. Bank was entitled to call for the identical cases stored, further that the warehouseman by his 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 warehouse receipt. Further held that by the delivery of the goods to A. a conversion thereof was shown and that the bank could maintain assumpsit without proof of demand. Fifth Nat. Bank v. Provi- dence Warehouse Co., \7 R. L 112. Same — Construction of clause therein limiting liability: — The receipt given by an express company as common carrier for a package received by it for transportation limited the liability of the company to fifty dollars, "at which the article forwarded is hereby valued 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 carriers' liability in the absence of a declaration in the receipt that the article was of higher value. Ballon v. F^arle & Prezv Express Co., 17 R. I. 441. SOUTH CAROLINA LAWS. 805 CHAPTER XL SOUTH CAROLINA. LAWS PERTAINING TO WAREHOUSEMEN Public warehousemen: — Any person engaged in the busi- ness 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 become a public warehouseman and authorized to keep and main- tain public warehouses for the storage of cotton, goods, wares, and other merchandise as hereinafter prescribed, and upon giving the bond hereinafter required. Code of South Carolina, 1912, sec. 2582. To give bond: — Every person or corporation so authorized under the preceding section to become a public warehouseman shall give bond, to an amount based on the estimated value said warehouseman will i)rovide 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 approved by the said clerk of court, for the faithful performance of the duties of a public warehouseman. Id. sec. 2583. Liability on bond: — Whenever such 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 his name, and to his own use, in any court of competent jurisdiction, 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. 2584. When shall insure property left in warehouse — Receipt for goods: — Every such warehouseman shall, when requested thereto, in writing, l)y a party placing property with him, or it, on storage, cause such property to be insured for whom it may 806 SOUTH CAROLINA LAWS. concern. Fvery such warehouseman shall, except as hereinafter provided, give to each person depositing property with him for storage a receipt therefor, which shall ho ncgotiahlc in form, and shall descrihe the property, distinctly stating the brand or dis- tinguishing 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 : Provided. Iiow- czrr. That every such warehouseman shall, upon 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, printed or stamped on the face thereof. Id. sec. 2585. No warehouse or other receipt for property to be 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, mer- chandise, provisions, grain, flour or other commodity shall have been actually received into the store or upon the premises of such warehouseman, wharfinger, 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, accept- ance or voucher. Id. sec. 2586. Receipts of warehousemen not to be issued unless goods are in custody: — No warehouseman, wharfinger or other per- son shall issue any receipt or other voucher upon any goods, wares, merchandise, grain, flour 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 l)c 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. 2587. SOUTH CAROLINA LAWS. 807 No duplicate receipt to be issued by warehouseman, etc., un- less so marked: — No warehouseman, wharfinger, inspector, custodian or other person 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 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. 2588. No such goods to be removed without assent of person holding receipt: — No warehouseman, wharfinger, or other per- son shall sell or incumber, ship, transfer or in any manner re- move beyond his immediate control any goods, wares, merchan- dise, grain, flour or other produce or commodity for which a receipt shall have been given by him as aforesaid, whether re- ceived for storing, shipping, grinding, manufacturing or other purposes, without the written assent of the person or persons holding such receipt. Id. sec. 2589. Warehouse, etc., receipts transferable — Transferee's rights — Delivery of receipts — Receipts marked "Not Negotiable:" — Warehouse receipts given for any goods, wares, mer- chandise, cotton, grain, flour, ])roduce or other commodity and chattels 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 ; and any person to whom the same may be so transferred shall be deemed and taken 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 assignment 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 warehf)useman issu- ing them. Id. sec. 2590. 808 SOUTH CAROLINA LAWS. Provisions inapplicable to goods replevied or removed by law: — So much of the preocdinj;- secticnis 2589 and 2590 as forhitis the (leh\erv oi property except on snrrendcr and cancel- lation of the orie^inal receipt or the indorsement of such delivery thereon, in the case of partial delivery, shall not apply to property replevied or removed by operation of law. Id. sec. 2591. Warehouse receipt — Title to grain: — When grain or other property is stored in ]nil)lic warehouses in such a manner that different lots or parcels are mixed together, so that tiie identity thereof cannot he accurately preserved, the warehouseman's re- ceipt for any portion of such grain or ])roperty 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. 2592. Warehouseman shall keep a book of entry: — Every such warehouseman shall kee[) a book in which shall l)e entered an account of all his transactions relating to warehousing, storing and insuring cotton, goods, wares and merchandise, 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. Id. sec. 2593. Action for damages under provisions as to warehousemen: — All and every person or persons aggrieved by the violation of any of the provisions of sections 2586 to 2591 may have and maintain an action at law against the person or persons violating any of the provisions thereof to recover all damages, immediate or consequential, which he or they may have sustained by reason of any such violation as aforesaid, before any court of compe- tent jurisdiction, whether such person shall have been convicted as hereinbefore mentioned or not. Id. sec. 2594. When warehousem.an may sell property left with him: — Every public warehouseman who siiall have in his possession any property by virtue of any agreement or warehouse receipt for the same, storage of the sarne, on which a claim for storage is at least one year overdue, may proceed to sell the same at public auction, and out of tiie proceeds may return 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 expenses of advertising and sale thereof. But no sale shall be made until after the giving of ])rinted or written notice of SOUTH CAROLINA LAWS. 809 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 storage, and in case of default in so doing the goods, wares and mer- chandise may be sold to pay the same at a time and place to be specified in such notice. Id. sec. 2595. Service of notice of sale by warehousemen : — The notice re- quired 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 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 this 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 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 party storing such goods shall have parted with the same, and the purchaser shall have notified the ware- housemen, with his address, such notice shall be given to such person in lieu of the person storing the goods. Id. sec. 2596. Surplus after sale by warehousemen: — 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 located, 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 wliicli shall be stated the name and place of resi- dence, so far as the same are known. Id. sec. 2597. SIO SOUTH CAROLINA LAWS. Disposition of perishable property in warehouses: — When- ever a pul)lio warcliouscnian 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 \ aluc 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 notified 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 i)ul)lic or private sale, without adver- tising, 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 prop- erty was stored; and if said person camiot be found, on reason- able 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 clerk of the court of the county wherein said warehouse is situ- ated, 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 clerk. Id. sec. 2598. Liability of warehousemen on sale of perishable property: — 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. 2599. Owners liability for storage where warehouse charges not covered by sale: — Whenever a public warehouseman, under the provisions of the two preceding sections, has sold or other- wise disposed of property and the proceeds of such sale or dis- position have not equalled the amount necessary to pay the storage charges, expenses of sale, and other charges against said property, then the person in v.hose 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 SOUTH CAROLINA LAWS. 811 pay all of the proper charges upon said property ; or in case such property was valueless and there were no proceeds realized from its disposition, 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. 2600. Maximum rates for selling leaf tobacco upon floor of tobacco warehouse: — The charges and expenses of handling and sell- ing leaf tobacco upon the floor of tobacco warehouses in this state shall not exceed 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 pounds and less than two hundred pounds; fifty (50j cents per pile for piles of two hundred pounds or over. For weighing and handling, ten (10) cents per pile for all piles of less than one hundred pounds ; for all piles 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 warehouse shall render to each 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 exceeding those herein named to be made or accepted : Provided, That the provisions of this section shall not apply to the counties of Sumter, Pickins and Chester- field. Id. sec. 2601. Warehousemen to keep tobacco statistics : — The warehouse- men of each and every leaf tobacco warehouses doing business in this State shall keep a correct account of the number of pounds of leaf tobacco sold upon the floor of his warehouse dailv. Id. sec. 2602. Tobacco warehousemen to make reports: — ()n or before the fifth day of each month the said warehouseman shall make a statement, under oath, of all the* tobacco so sold upon the floor of his warehouse during the past month and shall transmit the said statement at once to the Commissioner of Agriculture at Columbia, South ("arolina. The reports so made to the Com- missioner of Agriculture shall be so arranged and classified a.-: to show the number of pounds of tobacco, the grade and price .sold for the producers of tobacco frf)m first hand; the inmiber ^^1- SOUTH CARULINA LAWS. of pounds, grade and price sold for dealers; and the number of pounds, grade and price resold by the warehouseman for his own account or for the account of some other warehouse. Id. sec. 2(>03. Reports of Warehousemen as to tobacco to be kept and pub- lished: — The Conunissioner of Agriculture shall cause said statement to be accurately copied into a book to be kept for this purpose, and shall keep separate and apart the statements re- turned to him from each leaf tobacco market in the State, so as to show the number of pounds of tobacco sold by each market for the sale of leaf tobacco, the number of pounds sold by pro- ducers, and the number of pounds resold upon each market, and the said Commissioner of Agriculture shall keep said books open to the inspection of the public, and shall, on or before the tenth day of each month, after the receipt of the reports above required to be made to him on or before the fifth day of each month, cause the said reports to be published in the bulletin issued by the Agricultural Department, and in one or more journals published in the State, having a large circulation therein. Id. sec. 2604. "Warehouseman" defined: — A warehouseman within the meaning of sections 2602, 2603, 2604, 2605 and 2606 shall be construed to mean the person, firm or corporation operating a warehouse for the sale of leaf tobacco, whether such person, firm or corporation be the owner or lessee of said warehouse. Id. sec. 2605. Commissioner of Agriculture to furnish blanks to ware- houseman: — The said Commissioner of Agriculture shall pre- scribe the form of the statement herein required, and furnish a sufficient number of blanks to the several warehousemen of the State. Id. sec. 2606. Railroad Commission to fix storage charges on freight: — Power is hereby conferred on the Railroad Commission of South Carolina, and they 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 reception of freight at place of destination, such charges of storage shall begin, with power to vary the same according to the value and character of the freight stored, the nature of the place of destination, and residence of SOUTH CAROLINA LAWS. 813 consignee, and such other facts as in their judgment should be considered in fixing the same. All tlie provisions of the Act creating said Railroad Commis- sion and Acts amendatory thereof, prescribing the procedure of said Commission in fixing freight and passenger traffics, and hearing complaints of carrier and shippers, and of altering and amending said tariffs, shall apply to the subject of fixing and amending rates and charges for storage, as aforesaid. Id. sec. 2707. Discrimination and excessive charges prohibited: — No rail- road company shall make or maintain, directly or indirectly, any charge for storage or freight greater than that fixed by the Com- mission for each particular storage, nor shall they discriminate directly or indirectly by means of rebate, or any device in such charges, between persons. Id. sec. 2608. Penalty for overcharge of storage : — If any railroad company shall violate the provisions of 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 any Court of this State having jurisdiction of the claim, and shall have all the remedies, and be entitled to recover the same penalties and measure of damages 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. 2609. Fees of Secretary of State for issuing charter for cotton holding associations: — The fees to be charged by the Secre- tary of Slate for the issuing of a charter to cotton holding and storage associations, organized within this State, shall be twenty- five dollars ; and. further, that no commissions shall l^e charged on any increase of the capital stock of such association. Id. sec. 2844. 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 charges for weighing cotton shall not exceed ten cents for each bale; and any person violating the provisions of this section, or cillu-r of them, shall forfeit to ilu- owner of the cotton ten dollars for each offense, which may be recovered by him in any court of competent jurisdiction in this state. Id. sec. 2332. 814 SOUTH CAROLINA DECISIONS. Above section construed — Being penal must be strictly in- terpreted: — riie clefciulant, a factor, was sued by his principal lor 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 l)y the above statute for such storage. It was held that this statute, being penal, must be strictly construed and so construing it, it was perfectly manifest that the act pro- hibited by the statute is making of a charge for storage in excess of the rate there provided, not the paying of a charge in excess of the rate. Therefore, judgment given for defendant below was affirmed on appeal. Holman v. Frost & Co., 26 S. C. 290. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — When property liable for debt of bailee — Rule stated: — The rule wdiich renders the property of the true owner liable for the debt of the bailee, or person in possession, is applicable only where the original credit was based on the prop- erty; and the debt must not be of doubtful beginning, but the plaintiff must show it to have been contracted subsequent to the possession 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 limita- tions 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 wS. 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 generally 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 SOUTH CAROLINA DECISIONS. 815 have been to him individually, 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. Bardeyi & Brooks, 3 Strob. 343. Same — Depositing in zvarehouse — Stoppage in transitu: — The deposit of goods when they have reached their destination, in a warehouse, subject to the order and control of the buyer, is an executed delivery, as effectual to defeat the right of stoppage in transitu, as if they had been deposited in the warehouse of the buyer, and a deposit, in like manner, in the warehouse of the vendor, divests his right to retain for the price which may be unpaid. Fraser v. Milliard et al, 2 Strob. 309. Same — When liability attaches: — In an action against a rail- road 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. Hipp v. Southern Ry. Co., 50 S. C. 129. Warehouseman — Pleading — Statute of limitations — Code — Practice: — In an action against one charged as a warehouseman, to recover 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 inconsistent 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 SlU SOUTH CAROLINA DKllSlONS. ihoro was an iinpliod contract for (ho payment of reasonable storai^^o charges thereh)r. Ih-rrrriix v. Flniiiiii/, 53 Fed. Rep. 401, distin^nishint;- So))irs v. Slii/'/'iiu/ ("c, S 11. L. Cas. 338. Lien for storac/c charges — General balance — Must he under one transaction but not of one ti)nc necessarily — Charges continue after li'arehonsenian 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 en- titled 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 ' sustained. The right to hold the gcKjds until the charges are paid under the original contract of storage continues and the original contract does not cease until its charges are paid, re- mitted, or tendered. Devereux v. Fleming, 53 Fed. Rep. 401, distinguishing. Somes v. Shipping Co., 8 H. L. Cas. 338. I. Trover — Bailee may maintain — IVhen 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 mach- ine, for cleaning cotton-wool from its seed, who takes cotton to gin for a reward, is answerable 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 SOUTH CAROLINA DECISIONS. 817 for warehouses containing the special clause "cotton in bales, 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 warehouse. After destruction by fire the owner of the 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 therefor in their own name and having such right they could lawfully assign the same, was held correct. Pelser Mfg. Co. v. St. Paul Fire & M. Ins. Co., 41 Fed. Rep. 271. Same — Right of subrogation as affected 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 constructed 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 locomotives. This clause in the lease was not made known to the insurance company at the time of the issuance of the policv 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 difiference in the risk if the warehouseman had stated this fact. The jury found thai from custom in that part of the country it would have made no difiference. 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. Pelser Mfg. Co. v. .S"^ Paid 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 with a bill of lading attached thereto, it was held the title of the goods represented by the bill of lading passed U) the bank as against a creditor of the vendor, who attached the goods subsequent to the 52 SIS SOUTH CAROLINA DECISIONS. bank's possession of the bill ot ladin.e:. Union Nat. Bank v. Rowan. 23 S. C. 339. U. State warehouse system — Lazv unconstitutional: — Act to create and operate a state warehouse system for storing cotton and other commodities, Laws 1912. p. 707. held: to be null and void in entirety. State ex rel Lyon v. McCown, 75 S. E. 392. SOUTH DAKOTA LAWS. 819 CHAPTER XLI SOUTH DAKOTA. LAWS PERTAINING TO WAREHOUSEMEN. « The Uniform Warehouse Receipts Act is in force in Soutli Dakota. It was approved March 14, 1913, Session Laws, S. D. 1913, Ch. 364, p. 589. See also this volume p. 1. By the 62d section it is provided that "Nothing herein con- tained shall be construed as repealing any part of Article One, of Chapter Eight of the Political Code of the State of South Da- kota." Powers conferred: — The duties imposed by the provisions of this article and the powers conferred therein devolve upon the board of railroad commissioners. Revised Codes. S. D. 1903, P. C. sec. 480. Duties of Board: — It shall be the duty of the railroad com- missioners 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 inspection of grain, and for the management of the public warehouses of the state, as far as such rules and regulations may be necessary to enforce the provisions of this article, or any law of this state, in regard to the same; to investigate all compaints 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. 481. Rules to be printed and published: — The rules and regula- tions, so established, shall be printed and published by said railroad commissioners in such manner as to give the greatest ])ublicity thereto and the same shall be in force and effect until they shall have been changed or abrogated by said commissioner.? in a like public manner. Jd. sec. 482. Public warehouses defined: — Thai all clc\ators and ware- houses in this state wherein and whereat grain is purchased. 820 SDUTll DAKOTA LAWS. received or liaiulletl arc liereby declared to be public warehouses. Id. sec. 483. License: — That it shall be lawful for the proprietor, lessee or iiiaiiaq;cr of any warehouse or elevator, mentioned in the prcceeding section to transact any business until a license has been procured from the railroad commissioners 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 the railroad commissioners upon a written application, 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 ware- houseman, company or corporation engaged in purchase and storage of grain, subject to the provisions of this article, 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 corporations to divide between them the aggregate or net proceeds of margins or profits resulting from their said business as warehousemen, or any portion thereof, and in any case of such contract, agreement or combination for such pooling of their said business as warehousemen, each day of its con- tinuance shall be deemed a separate offense. Id. sec. 484. Bond and license fee: — The proprietor, lessee or manager of any warehouse or elevator in this state in which grain is stored 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 commissioners, for each license so granted, conditioned for the faithful performance of duty as a public warehouseman and full and unreserved compli- ance with all the laws of this state in relation thereto. A fee of SOUTH DAKOTA LAWS. 821 $1.00 shall be paid for each license by the person, association, or corporation applying for the same. Id. sec. 485, as amended by act approved Feb. 28. "1913, Laws. S. D., 1913, ch. 363, p. 589. Transacting business without license — Penalty: — That any person, association or corporation who shall transact the business of public warehouseman, without first procuring 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 carried on. Every such license shall expire on the first day of August next following the issu- ance 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 ware- houseman 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. 486. Warehouse receipts: — All owners of such bonded ware- houses and elevators so licensed 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 con- signee, 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 receipts issued for grain re- ceived shall be consecutively 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 actual delivery of grain into such warehouse. No such ware- houseman shall insert into any warehouse receipt issued by him any language in anywise limiting or modifying his liability as im])Osed by the laws of this state. Id. sec. 487. Above section construed: — The above section will estop a warehouseman from setting up as a defense against a bona fide holder of a receipt, evidence that the goods were never stored ill his warehouse. I'lctchcr v. Great Western Elevator Co., 12 S. 1). 643. 822 SOUTH DAKOTA LAWS. Grain to be delivered upon the return of the receipt: — On the return of any w areliDiise receipt properly indorsed, and the tender of all proper ehars^es upon the property represented by it. such grain, or an equal quantity of the same grade and kind, shall be immediately delivered to the holder of such receipt as rapidly as due diligence, care and prudence, will justify. Nothing 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 kind; 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 deducted from the grain stored for dirt, which amount shall also be delivered; and when such grain is to be shipped from some terminal point where such elevator company or warehouseman is there doing business, such elevator company or warehouseman shall guarantee both weight and grade. Revised Codes S. D. 1903, P. C. sec. 488. Report to railroad commissioners: — That every owner or manager of such licensed warehouse or elevator, at such times as the commissioners shall require, shall furnish to the commis- sioners in writing, under oath, a statement of the condition and management of his business as such warehouseman. 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 required to weigh 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. 489. Shall inspect warehouses: — The commissioners shall cause every warehouse and the business thereof, and the mode of conducting the same to be inspected, at such times as the com- missioners may order, by one or more members of the commis- sion, who shall report in writing 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 commis- SOUTH DAKOTA LAWS. 823 sioners may, in all matters arising under the provisions of this law, exercise the power to subpcena and examine witnesses con- ferred upon said board by law in relation to railroad companies. Id. sec. 490. Establish Grades : — The railroad commissioners shall, be- fore the tirst day of September in each year, establish a grade for all kinds of grain bought or handled by any elevator or ware- house in this state, which shall be known as "South Dakota grades," l)Ut which shall not differ from grades in the state of Minnesota, and the grades so established shall be printed and published in the manner recjuired by section 482 of this article ; Provided, that no such publication shall be necessary except when changes are made in such grades, and then the changes so made only shall be published. And said board of railroad commissioners shall have supervision of the grading, weighing and shipping of all grain purchased or handled by public warehousemen 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 provided. Any person aggrie\ed at the weights or grades given by any warehouseman may appeal to the board of railroad commission- ers, and it is hereby made the duty of said board to, without delay, inquire into said grievance and adjust the same in accord- ance with established standards. Id. sec. 491. Money to be paid to Treasurer: — All moneys collected by the railroad commissioners, as herein provided for, shall be paid into the state treasury. Id. sec. 492. Duty of state treasurer: — It shall be the duty of the treas- urer of tlic state of South Dakota to receive all moneys aforesaid and all fines and penalties collected by virtue of this article, and to keep a separate account of the same, and pay the same only on the order of the railroad commissioners to defray the expense of carrying the provisions of this article into effect. Id. sec. 493. Storage a bailment — Not a sale: — Whenever any grain shall be delivered to any person, association, firm or corporation, doing a grain warehouse or grain elevator business in this state, anrl receipts issued therefor, providing for a flelivery of a like kinrl, anif)unt and grade, to the bolder (hereof in return, such delivery shall be a bailment and not a sale of the grain so deliv- 824 SOUTH DAKOTA LAWS. ercil ; and in no case shall the grain so stored be liahle to seizure upon process of any court in actions against such bailee, except actions bv owners or holders of such warehouse receipts to en- force 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 ware- house 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. 494. Denial of storage not permissible: — No person, association, firm or corporation, doing a grain warehouse, or grain elevator business in this state, having issued a receipt for the storage of grain, as in this article provided, shall thereafter be permitted to deny that the grain represented thereby is the property of the person to whom such receipt was issued, or his assigns thereof, and such receipt shall be deemed and held, so far as the duties, liabilities and obligations of such bailee are concerned, con- clusive 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. 495. 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. Guilty of Larceny — When: — Every person, and every mem- l)er of any association, firm or corporation doing a grain ware- house or grain elevator business in this state who shall after demand, tender and offer as provided in section 488, willfully neglect or refuse to deliver, as provided by said section, 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 imprisonment, or both, as is prescribed by law for the punish- ment of larceny. Revised Codes, S. D. 1903, P. C. 496. On delivery the receipt shall be cancelled: — Upon the de- livery of grain from store upon any receipt, such receipt shall SOUTH DAKOTA LAWS. 825 be plainly marked across its face the word "cancelled" and shall thereafter be void, and shall not again be put in circulation, nor shall grain be delivered twice upon the same receipt. No ware- house receipt shall be issued except upon actual delivery of grain into store in the warehouse from which 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 con- tained 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 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 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 receipt, 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 than ten (10) days shall be permitted, and all new receipts issued for old ones cancelled, as herein ])rovided. shall l)c-ar the same date as those originally issued as near as may be. Id. sec. 497. 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 in which said 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 the year, and he shall cause the same to be plainly printed on the warehouse receipts or tickets, and such published rales, or any published deduction of them shall apply to all grain received into such warehouse from any person or S'26 SlU III n AKOIW LAWS. source. The cluirj^cs for slorai^c or li;iiullinj;- shall in all cases he equal aud just, and shall ho ai)i)rovctl hy the hoard of railroad commissioners hofore fjoinj; into ciTcct and shall not exceed the usual chari^cs heretofore existing-. Id. sec. 498. Duties of Attorney general and State's attorney: — The attorney i^a-neral of the state shall he ex officio attorney for the railroad commissioners and shall i^ive ihem such counsel and atlvice as thev may fnnii time to time require, and he shall insti- tute and i)rosecute any and all suits which said railroad com- missioners may deem expedient and proper to institute, and he shall render to such railroad commissioners all counsel, advice and assistance necessary to carry out the provisions of this article or any law which said commissioners are required to enforce 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 article it shall he the duty of the state's attorney of the county in which such prosecution is hrought to prosecute the same to a final issue. Id. sec. 499. Bonds — Where filed: — All official bonds required to be given by any person, company or corporation, pursuant to the provisions of this article, shall be filed in the office of the auditor of the state of South Dakota, and suit may be brought thereon in any court having jurisdiction thereof, for the use of any person or persons complaining of having sustained any injury by reason of a violation of the conditions thereof. Id. sec. 500. Combinations unlawful— Rules must be posted:— 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 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 other purpose contrary 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 com- missioners, and a printed copy of this article and of the rules and regulations for the management of warehouses established by the commissioners, to be furnished by the railroad commissioners. Id. sec. 501. SOUTH DAKOTA LAWS. 827 Penalty for violation of the provisions : — Any person, associ- ation or corporation, or any representative 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 article, or who shall do or perform any act or thing therein for- bidden, 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. 502. Board shall test scales: — Said board of commissioners or any one or 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. 503. Producers not bound under the provisions of this act: — Nothing in this article shall be so constructed as to prevent the producers from marketing, storing or shipping their own products in any manner they choose, without procuring any license or giving any bonds under any provisions of this article. Id. sec. 504 Duty of commissioners on refusal of sites : — Whenever any person, firm or corporation shall have been refused the privilege of constructing a public warehouse upon the right of way, depot grounds or warehouse lots of any railway at any station thereon in the state of .South Dakota, it shall be the duty of the board of railway commissioners to immediately, upon being notified of such refusal, to serve ten days' notice upon said railway company at the time of the investigation hereinafter provided for and then at the time so appointed apjiear at the station where such public warehouse site is desired and ui)on investigation and con- sideration of all the circumstances surrounding the case, deter- mine whether the public welfare will be advanced by the con- struction of a warehouse at such station. Id. sec. 505. Decision of the board — When final: — 1 1 ilic said board of railway commissioners shall after such consideration determine S2S SOUTH DAKOTA LAWS. lliat the iml)lic welfare wmiUl uol Ije ad\ancecl by the construction of a warehouse at said station, the said board shall so inform the applicant for said site and said determination shall be final and no further procedure shall be had in the premises. Id. sec. 506. Shall fix location: — If tlie said board of railway commis- sioners shall determine after due investigation that the con- struction of such warehouse is necessary and that the public welfare will be advanced thereby, then it shall be the 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. 507. Compensation for property taken: — In all cases where per- sons or firms invested with the privilege of taking private pro- perty for public use under this article shall determine to exercise such privilege, it shall 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, praying that a just compensation to be made for such property may be ascertained by a jury. Id. sec. 508. Petition — Contents of: — Such petition shall name the per- son or firm desiring to take such private property for public use as plaintiff, and the railway 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 provided by law for the verification of complaints in the circuit court, and the affidavit of verification shall contain the further statement that the proceeding is in good faith and for the purposes specified in the petition. Id. sec. 509. Amendments to petition: — If any person or corporation who are proper parties defendant to such proceeding, or any pro- perty afifected thereby, shall have been omitted from said petition or notice, the plaintiff may file amendments to the same, which amendments from the filing thereof shall have the same effect as though contained in said petition or notice. Id. sec. 510. SOUTH DAKOTA LAWS. 829 Plaintiff's motion for order: — At anv time after filiuQ- the petition the plaintiff may issue a summons to the defendant or defendants which shall be entitled in the action or proceeding, and state the time and place of filing the petition, the nature of the proceeding, and contain a notice to the effect that if the defend- ant or defendants do not appear in said proceedings within twenty days from the service thereof, exclusive of the day of service, the plaintiff 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. 511. Jurors — How Drawn: — If no appearance be made in said proceedings by the defendant or defendants within the time 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 shall be drawn and summoned in the same manner as jurors are drawn and sum- moned for the regular or special term of the circuit court. If any of the defendants shall have appeared in such proceedings, 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. 512. Action — How tried: — At the time and place specified in the order mentioned in the preceding section, a special term of the court shall l)e held, at which the proceedings in empaneling the jury, trial, and rendering of the verdict or verdicts shall be con- ducted in the same manner as trials of actions in the circuit court. Jd. .sec. 513. Pleadings in: — No other i)leadings shall be necessary in sucli proceeding except the petition of the plaintiff, and such as may become necessary to enable the court to determine conflicting claims of the defendants to the compensation awarded bv the verdict of the jury or some part thereof. Id. sec. 514. Jury view premises — When: — Upon the demand i>f any parly to (be proceechngs, if the court shall deem it necessary, the jury may view the premises under the rules of law for view- ing by the jury. Id. sec. 515. S^^O . SOUTH DAKOIA LAWS. Issue — Limited to what: — The only issue or cjuestion wliicli shall lio tried I)\' the jtiry iipdii the petition shall he the (juestion of compensation to he paid for the property so taken, but in case there shall he adxerse claimants for such compensation for any part of such properly, the court luay rc(|uire such adverse claimants to interplead, so as to fully determine the rights and interests in such compensation. Id. sec. 516. Verdict: — Ui^on llie return of 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 daiuages assessed by the jury, with the clerk of saitl 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 herein- before provided and to occupy the same. The right of occupancy only shall be vested in said plaintifif or his or their heirs or assigns. Id. sec. 517. 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 accommodation of such public warehouse and for the convenient operation thereof, together with necessary grounds and free access thereto from the nearest public thorough- fare. Id. sec. 518. Depositary for hire : — A deposit not gratuitous is called storage. The depositary in such case is called a depositary for hire. Id. C. C, Sec. 1376. Ordinary care: — A depositary for hire must use at least ordinary care for the preservation of the thing deposited. Id. C. C, Sec. 1377. Rate of compensation: — In the absence of an 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. C. C, Sec. 1378. Termination of deposit: — In the absence of an agreement as to the length of time during which a deposit is to continue. SOUTH DAKOTA LAWS. 831 it may be terminated by the depositor at any time, and by the depositary upon reasonable notice. Id. C. C, Sec. 1379. Same — Full time paid : — Notwithstanding an agreement re- specting 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 continu- ing. Id. C. C, Sec. 1380. Warehouse Law Adopted in 1909. Chapter 77 of the Session Laws of 1909 is as follows : AN ACT Entitled to Require Public Grain Warehousemen Shipping Grain to Terminal points where State Weighing, Inspection and Grading is Had to Transmit the Certificates of Such Weighing, Inspection and Grading or True and Correct Copies Thereof to the Person Having Immediate Charge of the Warehouse or Elevator from Which Such Grain is Shipped. Be It Enacted by the Legislature of the State of South Dakota: Section 1. Every person, association or corporation transacting the business of a public warehouseman in this state from whose warehouse or elevator grain shall be shipped to any terminal point at which such grain shall be weighed, inspected and graded by the officers of the state wherein such terminal point is situated, and certificates of such weighing, inspection and grading shall be issued by such officers, and every consignee of grain so shipped shall transmit and deliver such certificates or true and correct copies thereof to the person having the immediate charge of the warehouse or elevator from which such grain was shipped, within ten days after the issuance of such certificates, and the said certificates shall be open to the inspection and examination of any person who has an ownership interest in such shipment. Sec. 2. Any person, association or corporation violating the provisions of this act shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than fifty dollars nor more than one hundred dollars for each and every oflfense. Sec. 3. The board of railroad commissioners may revoke the license of any public warehouseman found, upon hearing before it, to have violated the provisions of this act. Approved February 24, 1909. Warehouse Law Adopted in 1911. Chapter 261 of the Session Laws of 1911 is as follows: AN ACT Entitled, An Act Providing a Method of Determining the Rental Value of Warehouse, Coal Shed or Other Building Sites to be Paid by Owners of Public Warehouses, Coal Sheds or Other Buildings Upon the Rif.HT-oF-wAV, Depot Grounds or Warehouse Lots of Any Railroad Company. Be It Exacted by the Legislature of the State of South Dakota: Section 1. Whenever the owner of any public warehouse, coal shed or other building upon the right of way, depot grounds, or warehouse lots of any (railroad) companv in the state of South Dakota shall fail to 832 SOUTH DAKOTA LAWS. •lerco witli (said railroad coinpaiiv as to a fair rental value of) such ware- iuni^e. coal shed or other building site, it shall be the duty of radroad commissioners immediately after notice of such disagreement, to hx and determine the fair annual rental value <^f such warehouse, coal shed or other buildini- site, and to notify in writing both the radroad company and owner of such warehouse, ecnd shed or (Uher buddmgs of the rental value so fixed and determined. Sec. 2. Either the railway company or owner of such warehouse, coal shed "or other buildinqs within twenty days after receiving such notice, may appeal to the circuit court of the country in which such warehouse, coal shed or other building is situated, from the decision of the board of railway commissioners fixing and determining the annual rental value of such warehouse, coal shed or other building site. Such appeals shall be taken by serving a notice of appeal in writing upon the adverse party and upon the scretary of the board of railway commissioners, and fifing the original notice of appeal with proof of service thereof with the clerk of the circuit court of said county. Within ten days after service of said notice of appeal upon the secretary of the board of railwoy commissioners, such secretary shall make and cause to be filed with the clerk of said circuit court a certified copy of the order of the board of railway commiEsioncrs appealed from. Sec. 3. At the next term of the circuit court of said county, unless continued for good cause, without any pleadings raising any issue of fact, the question of the fair annual rental value of such warehouse, coal shed or other building site shall be submitted to a jury for determination, and judgment shall be entered by the court in accordance with the verdict of the jury. Sec. 4. Unless an appeal from the decision of the board of railway commissioners shall be taken within the time mentioned in Section 2 of this act, the decision of said board shall be final and the amount fixed and determined by said board shall be paid, and if appeal from, then the amount fixed by the verdict of the jury and judgment of the court shall be paid, by the owner of such warehouse, coal shed or other building, to the railway company for the rental of such warehouse, coal shed or other building site. Approved March 7, 1911. That whenever any lessee, owner or manager of any ware- house or elevator in this state shall receive grain into such ele- vator or warehouse, and the same is not checked out by the sell- er within two days from and after the time such grain was weighed in, such grain so weighed in shall constitute stored grain, and any lessee, owner or manager of such elevator or warehouse weighing in such grain, shall comply with all the pro- visions of the laws now in force governing bonded warehouses and elevators for storing grain. Act approved March 14, 1913, Laws South Dakota, 1913, Chap. 362, page 588, sec. 1. Penalty: — Any person or persons, firm or corporation owning or leasing a warehouse or elevator and is engaged in the buying and selling of grain either by himself or through a man- SOUTH DAKOTA DECISIONS. 833 ager or agent, and who shall fail to comply with the provisions of this act, shall be guilty of a misdemeanor and shall be punished by a fine of not less than five ($5.00) dollars, nor more than fifty ($50.00) dollars. Id. sec. 2. DECISIONS AFFECTING WAREHOUSEMEN B. Demand — Case when unnecessary — IVarehouse closed: — The The plaintifif bank was the pledgee of a warehouse receipt depos- ited 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 defendant had any other elevator or warehouse in the state at which demand could be made, and of which the plaintiff had knowledge. It was held that it was not necessary for the plaintiff to show any other or further efifort to make demand. Citizens' National Bank v. Great Western Elevator Co., 13 S. D. 1. Right of stoppage in transitu — After goods stored in zvare- house: — The right of stopage 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. Pozvell v. McKechnie, Z Dak. 319. N. Pledge — Pledgee may maintain action in his ozvn name: — The pledgee of a warehouse receipt, under the statute of this state, may maintain an action for the conversion of the goods repre- sented 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 Dank v. Great Western Elevator Co., U S. D. 1. Q. Warehouse receipts — False — Estoppel — Measure of damages: — The plaintiff, a bona fide holder of a warehouse receipt, l)r()ught an action against the corporation which had issued the same for the value of grain represented thereby. It appeared from the evidence that the defendant corporation at the time of issuing the 53 S34 sorrii dakoiw decisions. receipt was oi)erating numerous warehouses within the state of South Dakota. The receipt was issued by an agent of the de- femlant when the grain which ii represented was not actually in store. It was transferred by the agent to the i:)laintiff who took without an\ knowledge of fraud and he paid full value therefor in cash. It was held that tlic defendant was liable for the act of its agent in frandulcnil\ issuing this receipt, and that the defend- ant was estopped to deny thai 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 i)aid for the warehouse re- ceipt. Fletcher v. Great IVestern lilcvator Co., 12 S. D. 643 ; Maynard v. Insurance Co., 34 Cal. 48. TENNESSEE LAWS. 835 CHAPTER XLII TENNESSEE LAWS PERTAINING TO WAREHOUSEMEN. The Uniform Warehouse Receipts Act is in force in Tennes- see. It was approved April 28, 1909. Acts Tennessee 1909, Ch. 336, p. 1226. See also this volume, p. 1. In view of the fact that the sixtieth section does not expressly repeal chapter 84 passed at the same session nor sections 3601 to 3608 inclusive of the Code of Tennessee, 1896, Shannon, it was thought better to include these laws herein. Lien for storage chargess — Re it enacted by the General Assembly of the State of Tennessee: That every warehouse company, firm, person, or persons engaged in the warehouse or storage business, who shall receive in his or their possession any goods, wares or merchandise in store for hire, shall have a lien thereon superior to unregistered liens or titles for the storage charges that may accrue thereon, together with any necessary expense incurred in making the sale, as provided by Section 2 hereof ; provided, however, that where sale of goods or chattels are made and a lien retained by the seller for the purchase money, such lien, whether registered or not. shall be superior to the lien hereby created. Ch. 84 Acts of Tennessee, 1909, p. 248, sec. 1. Be it further enacted: That after such storage charges or any part thereof shall be in default for a period of six months, such warehouse company, firm, person, or persons that shall have received such goods, wares, or merchandise for storage may enforce the lien hereinbefore provided for by a sale of the property so stored, after first advertising the same by printed or written notices posted at the door of the courthouse in the county where such property is stored, and also at two public places in said county, said notices to be posted at least thirty days before date of sale, and shall specify the articles to be sold, time and place of sale, and a copy thereof transmitted 836 TENNESSEE LAWS. through the mail to iho ;uUh-css of the person in whose name the properly is stored, if known, hy ])hK-inii; the same in the post office at least twenty days before the sale. Id. see. 2. He it further enacted: Idiat from the proceeds arising from siicli sale there shall he deducted the storage charges, together with the necessary expenses of sale, and the balance, if any, shall be held for the owner thereof; and every such warehouse company, firm, person, or persons shall keep a permanent record of such sales, showing description of articles sold, time of sale, amount received, and amount of storage charges and expenses. Id. sec. 3. Be it further enacted: That this act take effect from and after its passage, the public welfare requiring it. Id. sec. 4. Passed February 12, 1909, approved February 19, 1909. Warehousemen: — All persons, firms, companies, or corpora- tions who shall receive cotton, tobacco, corn, wheat, rye, oats, hemp, whisky, or any kind of produce, wares, merchandise, or any description of personal proerty, 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 warehouse- man. Shannon's Code of Tennessee, 1896, sec. 3601. Warehouse receipt not to be issued until produce is deliv- ered: — No warehouseman shall issue a receipt for cotton, to- bacco, grain, hemp, whisky, or any kind of produce, wares, merchandise, or any description of personal property, unless such produce or personal property be in the custody of such warehouseman, and in store, or upon the premises and under his control, at the same time of issuing such receipt. Id. sec. 3602. Duplicate receipts to be so marked: — No warehouseman shall issue any second or duplicate receipt while any former receipt for the same produce or other personal property, or any part thereof, shall remain outstanding or uncancelled, without writing or stamping plainly across the face of the same the word "duplicate." Id. sec. 3603. Shall hold produce or proceeds subject to receipt:— No warehouseman shall sell or encumber, ship, transfer, or in any way remove, or permit to be removed, transferred, or shipped, TENNESSEE LAWS. 837 beyond his control, anything hereinbefore mentioned, for which a receipt shall have been given by him, until the receipt for the same be surrendered to and cancelled by him. Id. sec. 3604. Warehouse receipts made negotiable: — All receipts issued by any warehouseman for cotton, tobacco, grain, hemp, whisky, or any kind of produce, wares, merchandise, or any description of personal property, shall be negotiable by written indorse- ments thereon, and delivery in the same manner and to the same intent (extent) as bills of exchange and promissory notes; and any person or persons to whom the same may be transferred bona fide, and for value received, shall be deemed and taken to be absolute owner of the produce, wares, merchandise, or other personal property therein specified ; and no clause, condi- tion, 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. 3605. Nonnegotiable receipts: — But all such receipts which shall have the words "not negotiable" plainly written or stamped thereon shall not be subject to the provisions of this chapter. Id. sec. 3606. 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 ad- vanced thereon. Id. sec. 3607. 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 convic- tion thereof, shall be fined in any sum not exceeding five thou- sand dollars, or shall be punished by imprisonment in the peni- tentiary of the state for not more than (wq. years, or both, in the discretion of the jury trying the ca.se; 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 corporations, violating any of the provisions of this chapter, to recover damages which he or they may have sustained by rea.son of such violation as aforesaid, before any court of competent jurisdiction, whether such person 838 TENNESSEE LAWS. or persons aforesaid shall have hocn convicted of a criminal ofFense nndcr this chapter or nol. /(/. see. 360S. OF TllK INSPECTION OF TOBACCO. Warehouses: — Any citizen may open a warehouse for the inspection and sale of tohacco under the rules, regulations and restrictions of this article. Id. Sec. 3379. Proof of sufficiency of warehouse required: — Every person so doing shall prove to the clerk, l)y the testimony of two impartial witnesses known to him to he well qualified, from knowledge and experience, as judges in the matter, that he is the proprietor of a good and sufficient warehouse, situated so as to be exposed to no extraordinary risk from fire or flood, and furnished, besides, with, all the implements necessary to the accurate weighing and inspection of tobacco. Id. Sec. 3380. Bond of tobacco warehouseman: — He shall also enter into bond, with good and sufficient security, to be approved by the judge or chairman of the county court, and payable to the state, in the sum of five thousand dollars, conditioned to keep his ware- house in good condition and repair so as effectually to protect the tobacco stored therein ; that he will not sell any tobacco that has been bought l)y him or on his account, or purchase on his own account any tobacco stored in his warehouse, either directly or indirectly: and that he will perform faithfully all the duties of warehouse keeper as ])rescribe(i by law. Id. Sec. 3381. Failing to give bond, not to collect fees; penalty: — Should said proprietor fail to execute said bond for five thousand dollars, then he shall not be entitled to collect any fees on tobacco stored in his warehouse, under a penalty of one hundred dollars for each offense, to be recovered in the name of the state, one-half to go to the informer. Id. Sec. 3382. Who may sue, bond: — Any planter or person aggrieved may sue on this bond for a breach thereof, in the name of the state, until the penalty is exhausted. Id. Sec. 3383. Warehouse to be kept in repair, or forfeiture ; and liability on bond: — The proprietor shall fit up his house with j)lank floors or skids, upon which to place the tobacco, so that the hogsheads may be at least four inches from the earth ; and any proprietor who fails to keep his warehouse in good repair, or to furnish it TENNESSEE LAWS. 839 as in this section provided, shall forfeit two hundred dollars to the state, and is also liable upon his bond to an action for damages, at the instance of any ])lanter or owner whose tobacco is injured. /(/. Sec. .3384. Scales, and inspection of same: — The proprietor will keep good and sutlicient scales for weighing tobacco, which shall be tested at the beginning of each tobacco year, and every three months thereafter, by the keeper and sealer of weights for the county, and at any time when written aplication is made by two or more planters or burghers. Id. Sec. 3385. Breaking irons: — He shall also keep the necessary break- ing irons for the proper inspection of tobacco, and screws for the proper cooperage and return of loose tobacco to the hogshead after inspection. Id. Sec. 3386. Attention to duty: — lie or his clerks shall be constant and prompt in their attendance at the warehouse for the reception and storage of tobacco, and to promptly deliver same to the planter or burgher entitled thereto, upon order, for shipment. Id. Sec. 3387. Who may be inspector, deputy; oath: — The proprietor of a warehouse, regularly licensed (authorized (?), 1877, ch. 109) under this article, shall be, and is hereby, created an inspector of tobacco, with power to appoint deputy inspectors ; but before any warehouse keeper who may personally act as inspector, or any deputy who may act as inspector for such warehouse keeper, shall enter upon the duties of an inspector, he shall go before the county court clerk, and take and subscribe the following oath: "I. A. B., do solemnly swear (or affirm) that I will carefully and diligently perform all the duties of an inspector of tobacco, according to law and to the best of my skill and judgment, without fear, favor, affection, malice, or partiality, and that I will not l)uy nor sell any tobacco inspected and sampled by me. nor arrci)t any interest or profit in or from the purcliase or sale of any tobacco inspected and sampled l)y me. So help me Tiod." y\nd slinll enter into bond, with good and sufficient security, to be ai)i)rovcd by the judge or chairman of the county court, and })ayable 1o the state, in the sum of five thousand dollars, conditioned to faithfully and honestly discharge the duties of his office; and that he will not bu\' nor sell any tobacco inspected and sampled by him, nor :iccept any interest or profit 840 TENNESSEE LAWS. in or from the purchase or sale of any tobacco inspected or sani]iled by him. hi. Sec. 3vS88. Duties of proprietor or deputy: — It is the duty of the pro- prietor or one of his rcp^ular deputies : (1) To examine and classify. — To inspect the uncasing and breaking of any tobacco for inspection, and to examine and classify same according to law and his oath of office. (2) To break Iior/shcads, hozv: — To break each hogshead for inspection in at least four different places, drawing from each break at least four bundles or hands of tobacco, from ditTerent courses or layers, so as to get a fair and just repre- sentation of the quality and condition of the tobacco. (3) Scaling and marking samples. — To place these bundles together in one sample, to stamp with the following seal, "State Tobacco Inspection," and mark with ink upon the label of the sample the name of the warehouse, the planter's name, the warehouse number of the hogshead and its approximate gross weight, the date of inspection, and the name of the sampler drawing the sample. (4) "Admitted"; "Refused."— He shall mark "A," or "Ad- mitted," all sound, clear, well-assorted leaf tobacco, clear (of) lugs or trash, in good keeping order; and shall mark "R," or "Refused," all lugs or trash, or leaf mixed with lugs or trash, or clean leaf tobacco, if not in good keeping order. (5) "Cask condemned."— To condemn all hogsheads or casks that are insecure, or made of green or unsound timber, and mark upon the label of the sample, "Cask Condemned" ; the cost of ])utting such hogshead in proper merchantable order shall be charged to the owner of the tobacco. (6) "Damaged." — He shall refuse to classify, and shall mark as "Damaged," expressing on the label the probable amount of damage, every hogshead so damaged that the sample drawn will not show the character and extent of damage. (7) Hogsheads fraudulently packed, "condemned" etc. — He shall refuse to classify, and mark "Condemned," any hogs- head of tobacco that is falsely and fraudulently packed with intent to deceive, and shall give full information to the grand jury al)out such hogshead, from his books, when called upon to furnish same. TENNESSEE LAWS. 841 (8) Coopering, reiveighing, and marking. — To superintend the coopering and reweighing; to see that each cask is replaced over the same tobacco from which it was taken ; to mark the hogshead on both heads with distinct figures, specifying the correct weights. (9) Register of inspection. — To carefully enter in a book, to be provided and kept for that purpose alone, an account of every hogshead of tobacco inspected, stating the planter's name, warehouse number, the gross weight, the tare, the net weight, the price at which it is sold, the purchaser's name, and its quality, whether "admitted" or "refused." (10) Inspection to be personally made. — The inspector of tobacco shall be personally present, and witness the breaking of any tobacco for inspection, and personally attach his seal to the sample drawn, and to pay all just reclamations on tobacco improperly sampled by him. (11) Reinspection, when made. — Should any planter, or his agent representing him, claim that the sample drawn from his tobacco by an inspector does not represent fairly the hogshead from which it was taken, he may demand that such hogshead be reinspected, and the tobacco board of trade shall appoint a committee, consisting of two warehousemen and one buyer, who shall resample said tobacco, so as to show, as nearly as may be, the average condition and quality of the hogshead ; and upon said sample so drawn by said committee, and the said sample drawn by the inspector, the said board of trade shall proceed to adjudge, in the same manner and in all respects as reclamations in favor of the buyer are determined, the amount, if anything, said hogshead has been undersampled by the said inspector, and the amount so adjudged shall be paid by said inspector to said planter. But nothing herein contained shall be so construed as to prevent any planter from guaranteeing his tobacco to come up to the sample drawn l\v any inspector. /(/. Sec. 3389. Responsibilty of keeper: — After the tobacco is inspected, coopered, weigher!, and tuimbercd, the warehouse keeper becomes responsible to the planter or owner for the weights and proper keeping of the tobacco. /(/. Sec. 3390. Conversion of samples, or plucking leaves from, prohibited; penalty: — No warehouse keeper, nor anyone in his employ- S42 TENNESSEE LAWS. nient. shall take or ciuuort to his own use, or dispose of, any sample of toliacoo, hut the same shall l)e delivered to the pur- chaser, ami all loose tohacco shall be neatly returned to the hogs- head from which it came, before coopering and weighing. No person shall willfully or wantonly ])luck any leaf or leaves from any sample of tobacco to which I he inspector has attached his seal, either before or after sale. Any person violating this sec- tion shall forfeit fifty dollars for each offense, one-half to state, the other to the informer. Id. Sec. 3390a. Erasure or counterfeiting, misdemeanor: — Tf any person erase, or in any way alter or deface, any letter, mark, number, or figure i)ut upon any hogshead by an inspector, or counterfeit the same, previous to the delivery to the juirchaser. he is guilty of a misdemeanor. Id. Sec. 3391. Keeper not to sell tobacco until inspection; penalty: — No warehouse keeper shall sell publicly any sample of tobacco which has not been regularly inspected under the provisions of this article, under a penalty of five dollars for each hogshead so sold, to be recovered by any person suing therefor. Id. Sec. 3392. Copy of sample cards; "inspected:" — When any v^arehouse- keeper is called upon to inspect a lot of tobacco, he shall make a copy of the original sample card, and write on it, in plain letters, "Inspected," adding the date. Id. Sec. 3393. Warehouseman not to sell or buy: — The proprietor of no warehouse shall sell any tobacco that has been directly or in- directly bought by him, or on his account, nor directly or in- directly purchase on his own account any tobacco stored in his warehouse. But this section is not to be construed as referring to the sale of crops of tobacco raised by the proprietor or any of his agents or employees. The proprietor of no warehouse, nor any deputy of such j^roprietor, who shall act as inspector of tobacco, shall buy nor sell any tobacco inspected and sampled by him, nor accept any interest or profit in or from the pur- chase or sale of any tobacco inspected and sampled by him. Any person violating this section shall forfeit fifty dollars for each hogshead so purchased or sold, or in which such interest or profit was accepted, one-lialf to the state, the other to the in- former. Id. sec. 3394. TENNESSEE LAWS. ^'*^ Accepting gratuity or reward; penalty: — If any warehouse keeper accepts, directly or indirectly, any gratuity or reward for anything by him done in the discharge of his official duties, he shall forfeit two hundred dollars to the state, and be, moreover, guilty of a misdemeanor, and punishable by fine. He shall also forfeit his office and be forever after disqualified from holding the office of "tobacco inspector." Id. sec. 3395. Derelictions to be reported to county court clerk: — Any planter or person shall inform the clerk of the county court of any dereliction of duty on the part of the warehouse keeper; Id. sec. 3396. Fraudulent packing or "nesting;" penalty:— Any person who fraudulently packs or "nests" a hogshead of tobacco with intent to deceive, and obtain thereby more than its true value, is guilty of a misdemeanor, and shall be fined not less than fifty dollars nor more than five hundred dollars, and be imprisoned not more than six months. Id. sec. 3397. Description, etc., of best hogshead to be posted in ware- house: — The warehouse keeper shall keep posted up in some conspicuous place in his warehouse a description of the hogs- heads or casks, length, measurement, etc., best suited to contain tobacco for market. Id. sec. 3398. Fees, commissions, etc: — The compensation of warehouse keepers for receiving, storing, inspecting, coopering, and selling tobacco shall be as follows, to wit: To be paid by the seller, $2.50 and one per cent, commission on proceeds of sale; to be paid by buyer, $1.50, and for storage after sale, after the first thirty days, for each month or part thereof, twenty-five cents. Id. sec. 3399. Penalty for extortion: — Any warehouse keeper who shall charge more than is allowed in the preceding section is guilty of a misdemeanor, and is also liable to a penalty of ten dollars to the planter or person overcharged, recoverable before any justice of the peace. /(/. .sec. 3400. Refusing bid: — Any planter or other owner of tobacco sold at auction, may, by iming the fees, refuse at the time to take the price at which it was cried off. Id. .sec. 3401. 844 TENNESSEE DECISIONS. Proprietor's lien: — A lien is hereby given to the proprietor of the warehouse on all tobacco and proceeds for fees and charges on same. Id. sec. 3402. Selling or shipping without inspection not prohibited: — No planter or person is prohibited from selling his tobacco at private sale, with or without inspection, if he chooses so to do, nor compelled to have his tobacco, though stored in a licensed ware- house, inspected; but he may sell or ship it without inspection. Id. sec. 3403. Prosecution for penalties; duties of county court clerk and district attorney; their fees: — The clerk of the county court shall attend to all prosecutions for penalties under the provisions of this article, for the use of the state, for which he shall receive ten per cent on the sums collected and paid into the state treasury. He may also, when necessary, call on the district attorney to give professional attention to such i)rosecutions, for which service said attorney shall be allowed ten dollars, to be taxed in the bill of costs. Id. sec. 3404. Judges to give this article in charge: — The judges of the several circuit courts of this state shall be, and they are hereby, required, at all the courts which they hold in the counties where a tobacco inspection is established, to give this article in charge to the grand jury and direct said jury to make diligent inquiry in regard to any breaches hereof, and particularly in regard to the conduct of inspectors. Id. sec. 3405. "Tobacco commercial year." — The "tobacco commercial year" commences and ends on the first day of November of each year. Id. sec. 3406. Private warehouses: — Nothing in this article contained shall prevent any person from establishing a private warehouse for the storage of tobacco. Id. sec. 3407. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Demand necessary: — In an ordinary case of bail- ment no action would lie for the conversion of the deposit until there has been a demand and a refusal, but where a debt is TENNESSEE DECISIONS. 845 created by the transaction, payable 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. Colyar, 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 the 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 depart- ment, 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. Lan- caster Mills V. Merchants' Cotton-Press Co. et al., 89 Tenn. 1; Waller v. Parker, 5 Cold. 466; Deming & Co. v. Merchants' Cotton-Press, etc., Co., 90 Tenn. 306; Kelton v. Taylor & Co., 1 1 Lea, 264 ; Kirtland v. Montgomery, 1 Swan, 452 ; Polk v. Kirtland et al, 9 Heisk. 292 ; Wallace v. Canady, 4 Sneed, 364 ; Szuift & Co. V. Memphis Cold Storage Warehouse Co., 158 S. W. 480. Same — Ho7v contract between zvarehouseman and depositor ascertained: — The proper manner of ascertaining the contract existing between 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 warehouse- man advancing money to a customer to i)urcliase produce to be shijjped to him and sold on ihc customer's account, may validly stipulate by parol that the title to the property thus purchased S4li TENNESSEK DICCISIONS. shall \est and remain in him as scciiritx for ihc money advanced, although its possession passes temporarily to the customer for preparation and shipment ; and upon the title thus reserved the warehouseman can maintain reple\ in aj«ainst the customer, his administrators or creditors for such property thus purchased, as can he identified. Craiu/r irarclioiisc Assoc, v. Ozveii. 4 TENNESSEE LAWS. itself. It only gave authority t(^ tlie factor to reduce the cotton to possession. Sauiuicrs v. Hartlctt, Could v'r llcath, 12 lleisk, 31o; Oliver ct al. v. Moore & Co., 12 lleisk, 4S2; Woodruff v. N. & C. R. R. Co., 2 Head, %7. U. ]\\irchousc act coiistitiitio)uil — Docs not embody more than one subject: — The act of 1879 known as the Warehouse Act does not violate sec. 17, art. 2 of. the constitution of tlie state of Tennessee in that it embodies more than one subject. Its title is "An act to define warehousemen, to regulate their duties, and to affix jK'ualties 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. TEXAS LAWS. ^^^ CHAPTER XLIII TEXAS. LAWS PERTAINING TO WAREHOUSEMEN. Be it enacted by the Legislature of the State of Texas : That Articles 969, 970, 971, 972, 973. 974, 975, 976. 977 of Chapter 5, Title 14, of the Penal Code of the Revised Criminal Statutes of Texas for 1911, and Articles 7819, 7820, 7821. 7822. 7823, 7824, 7825. 7826. 7827 of the Revised Civil Statutes of Texas of 1911, be and the same are hereby so amended as to hereafter read as follows : An Act relating to public warehouses, amending Articles 969 to 977 inclusive. Chapter 5, Title 14, Penal Code, relating thereto. Took effect Nov. 18. 1913. General Laws Texas 1913, Ch. 37, p. 93. sec. 1. All persons, firms, companies or corporations who shall re- ceive cotton, tobacco, wheat, rye. oats, rice, oil or any kind of produce, wares, merchandise, or any description or personal property in store for hire, under the provisions of this Act. shall be deemed and taken to be public warehousemen ; and all ware- houses which shall be owned or controlled, conducted and man- aged 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 inclosed with a lawful fence, the gates or entrances to which shall be kept securely locked at night. Id. sec. 2. The owner, proprietor, lessee or manager of any public ware- house, whether an individual, firm or corporation, before trans- acting any business in such public warehouse shall iirocurc from the county clerk of ilic county in which tlic warehouse or ware- houses are situated, a certificate that he is tran.sacting business as a public warehouseman under the laws of the State of Texas, which certificate shall be issued by said clerk npf)n a written api)lication, setting forth llic loc,-i1ion niid name of such ware- house or warehouses, and the name of each person, individual. Sol) TEXAS LAWS. or a incnil)ci" of the linn, interested as owner or priiieipal in the manatrenient of the same, or. if the warehouse is owned or man- ageil by a corporation, the names of the president, secretary and treasurer of such corporation shall he stated, which application shall be received and tiled by such clerk and preserved in his of- fice, 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 revokable only by the district court of the county in which the warehouse or warehouses are situated, upon a proceeding before the court, on complaint by written peti- tion of any person, setting forth the particular violation of the law, and upon process, procedure and proof, as in other civil cases. The person 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 sufficient surety, to be ap- proved by said clerk, in the penal sum of five thousand dollars, conditioned for the faithful performance of his duty as a public warehouseman, — which said bond shall be filed and preserved in the office of such clerk. Id. sec. 3. 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 ware- house receipt therefor, to the order of the person entiled thereto; which receipt shall purport 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 location, the description, quantity, number and marks of the property stored, where such receipt is for cotton it shall state the class and weight, and the date on which it was originally 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, and insurance, which charges shall be stated on the face of the receipt. All such receipts shall be num- bered 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 shrill be kept in a well bound book, which shall be, at all reasonable hours, open to examina- tion by any interested person; and no two receipts bearing the same number shall be issued from the same warehouse during TEXAS LAWS. 857 the same year, nor shall any duplicate receipts be issued, 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" and provided, that no such duplicate receipt shall be issued by the public warehouse- man until adequate security acceptable 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. 4. The supervision of public warehouses shall be under the con- trol of the Commissioner of Insurance and Banking, whose duty it shall be to prescribe all forms of receipts, certificates, and rec- ords of whatsoever description necessary in the conduct of the business of public warehouses ; and in providing forms for hand- ling those products which are of general commercial character, the said commissioner shall prescribe forms answering to all usual requirements of negotiable receipts or certificates. The Commissioner of Insurance and Banking is hereby empowered and directed to make not less than one examination each year of all such public warehouses, the necessary expense of such ex- amination or examinations to be paid by the warehouse. Id. sec. 5. The Commissioner of Insurance and Banking shall provide a uniform public warehouse receipt for cotton which shall be used by all public warehouses coming under the provisions of this Act, which said receipt shall conform in all respects to the pro- visions herein set out. In addition to the other provisions such receipt shall have a blank form on the back thereof, to be filled in and signed by the owner of the cotton showing whether or not such cotton is free from encumbrance or liens of any kind. Id. sec. 6. If there is any encumbrance or liens of any kind on said cot- ton at the time of its storage the nature and amount of same shall be clearly set out and it is hereby made the duty of the public warehouseman or his authorized agent issuing the receipt, to have said blank filled in and signed by the owner of the cotton before issuing a negotiable receipt against same ; provided, however, such statement need not be made if a non-ncgotiablc receipt is desired, but in such cases the ])ublic warehouseman issuing said receipt shall write or stamp across the face thereof the words "not ne- gotiable." Id. sec. 7. 858 TEXAS LAWS. If a person lioUliiig- a non-negotiable receipt for cotton as is herein provided for, sliall desire to obtain a negotiable receipt in lieu thereof, he shall return said non-negotiable receipt to the pub- lic warehouse issuing same and thereupon shall comply in every respect witli the provisions of this chapter relating to negotiable receipts, and upon compliance therewith a negotiable receipt shall be issued to him in lieu of said non-negotiable receipt, and said non-negotiable receipt thereupon shall be cancelled, and the word "cancelled" ]>lainly marked in ink across the face thereof. Id. sec. 8. Any person making a false statement concerning liens, mort- gages, encumbrances or indebtedness or whatsoever nature against the cotton, or who shall in any particular conceal the existence of liens, mortgages, encumbrances or indebtedness of any kind that may exist against such cotton, or who shall fail to truthfully make the statements provided for by this Act, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine of one thousand dollars, or imprisonment in the penitentiary for one year, or by both such fine and imprisonment. Id. sec. 9. No public warehouse receipt shall be issued except upon the actual previous delivery of the goods in the public warehouse or on the premises, and under the control of the public warehouse- man by whom it purports to be issued ; and the name of the ware- house shall invariably be specified in such receipt. Id. sec. 10. On the presentation and return to the warehouseman of any public warehouse receipt issued by him and properly indorsed, and the tender of all proper warehouse charges upon the property represented by it, such property shall be delivered immediately to the holder of such receipt; but no public ware- houseman who shall issue a receipt for goods shall, under any circumstances or upon any order or guarantee whatsoever, deliver the property for which receipts have been issued, until the said receipt shall have been surrendered and cancelled, ex- cept in case of lost receipts, as provided for in Section 4; and, in default of the strict compliance with the provisions of this article, he shall be held laible 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 penalty herein provided. Upon delivery of the goods from the warehou.se, upon any rccci]it. such receipt shall be plain- Iv marked in ink across its face with the words "cancelled," with TEXAS LAWS. 859 the name of the person cancelling the same, and shall thereafter be void, and shall not again be put in circulation. Id. sec. 11. No public warehouseman shall insert in the public warehouse receipt issued by him any language limiting or modifying his lia- bilities or responsibilities as imposed by the laws of this State, excepting, "not accountable for leakage or depreciation," or words of like import and meaning. Id. sec. 12. The receipt issued against property stored in public warehouses, as herein provided for shall be negotiable and transferable by endorsement in blank or by special endorsement, 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 in- tents and purposes, of the property therein described, subject only 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 negoti- able" plainly written or stamped on the face thereof, shall be ex- empt from the provisions of this article; 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 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 issuer of said receipt for his own goods in his own public warehouse, from complying with and being subject in all respects, to all other articles of this chapter. Id. sec. 13. Any public warehouseman who violates any of the provisions of this law shall be deemed guilty of criminal ofifense, and, upon indictment and conviction thereof, shall be punished by fine in any sum not exceeding five thousand dollars, or imprisonment in the State penitnetiary not exceeding two years, or by both such fine and imprisonment. Id. sec. 14. Any, every and all persons, aggrieved by the violations afore- said, shall have the right to maintain an action against the per- son or persons, corporation or corporations, so violating any of the provisions of this law, for the recovery of damages which he SOO TEXAS DECISIONS. or they may have sustained by reason of suoli violation aforesaid, before any court of competent jurisdiction, whether such person or persons so violatnig shall have been convicted of criminal of- fense under this law or not. /(/. sec. 15. Nothing in this law shall be construed ot apply to private ware- houses or to the issue of receipts l)y their owners or managers under existing laws, or to prohibit pul)lic warehousemen from is- suing such receipts as are now issued by private warehousemen under existing laws ; provided, that such private warehouse re- ceipts issued by public warehousemen shall never he 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- acters, the words, "not a public warehouse receipt." Id. sec. 16. The fact that the existing law regarding the regulation of bonded warehouses is inadequate to meet the requirements of commerce and properly safeguard the handling of cotton and other products stored in such warehouses creates an emergency and imperative public necessity that the constitutional rule re- quiring bills to be read on three several days be suspended, and that this bill be placed on its third reading and final passage and take effect and be in force from and after its passage and it is so enacted. Id. sec. 17. [Note. — This act, being H. B. No. 44 was passed by the House August IS, 1913, but no vote given; House concurred in Senate amendments August 19, 1913, but no vote given, and was passed by the Senate by a two-thirds vote, yeas 27, nays 0.] DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Ozvner 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 & Browne v. Gage & Wood, 1 C. A. 661. Same — Bailee taking zvith notice of claim — Subject thereto: — Where one buys property or receives it as bailee with notice of a claim of title by another, adverse to his vendor or bailor, he takes and holds subject to the rights of the adverse claimant, though ostensible title may have been in his vendor or bailor, McAnelly v. Chapman, 18 Tex. 19(S; Luckett v. Townsend, 3 Tex. 119. TEXAS DECISIONS. 861 Same — Same — Conversion: — Where a bailee has knowledge of a claim of title by another adverse to his bailor, and by direc- tion 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 established is then or thereafter brought. Mc- Anelly v. Chapman, 18 Tex. 198. Same — Limiting liability: — Bailees may by contract limit their liability provided such limitation 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 wiiich the factor has made advances, may nevertheless be taken in execution by a creditor of the owner, subject to the advances which have been made. Joost v. Scott, 19 Tex. 473. Same — When statute of limitations begins to run: — Where there was a bailment for hire to be terminated when demand made for thing bailed. Jicld that in the absence of demand the statute began to run upon the death of the bailor. Wingate v. IVingate, 11 Tex. 430; Hunter ct al. v. Hubbard, 26 Tex. 537. B. Ordinary care: — The liability of a warehouseman for the pro- tection of goods intrusted to him extends only to the exercise of ordinary care. T. &■ P. Ry. Co. v. Schneider & Davis, 1 App. Cas. sec. 118; Same v. Morse, 1 App. Cas. sec. 412; Same v. IVever, 3 App. Cas. sec. 60; Coffield v. Harris, 2 App. Cas. sec. 315 ; Chicago, R. I. & P. Ry. Co. v. Bulley & Son, 140 S. W. 480. Delivery — To bailor after notice of real ozvner's claim — Con- version — Ride stated: — "If the bailee have the temporary pos- session of the property, holding the same as the property of the i)ailor, anfl asserting no title in himself, and in good faith, in ful- fillment 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 will look to him for it, no action will lie against him for he has only done his duty." If delivery be made to the bailor after notice of owner's claim, it will constitute a conversion. In case of demand by one other than bailor, the 862 TEXAS DECISIONS. bailee has a reasonalik- time in which to ascertain who is the owner of the property. A failure to deliver to the true owner will not constitute a conversion until after the expiration of a reasonable time from time of demand. Roberts v. Yarboro, 41 Tex. 449; Horsclcy v. Moss & Pennington, 5 Tex. C. A. 341. Same — To wrong party: — Plaintiff, a compress company, re- ceived live bales of cotton from W. and issued its receipts therefor. Subsequently R.. claiming to be the owner of the cotton, ordered it shipped out, which was done. Afterward other parties presented the compress receipts and demanded the cotton. Plaintiff purchased other cotton and honored the re- ceipts. Action against R. for value of cotton purchased. Judg- ment was rendered against R. and a bank which had advanced money to W. upon the receipts was held liable to R. on its guaranty to hold him free from loss. Nat'l Bank of Denison v. Roundtree, 115 S. W. 639. 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 which had been sent to the latter to be ginned. It appeared that the plaintiff was the owner of a certain plot of ground and that he contracted with the lessee that one-half of all the cotton pro- duced by him on such ground was to belong to the plaintiff. After the cotton reached the defendants' gin the plaintiff notified them of his claim and instructed them not to deliver the cotton without his order. Subsequently the defendants delivered the cotton to the lessee contrary to the instructions of the plaintiff. It was held that this action on the part of the defendants con- stituted a conversion of the plaintiff's interest in the cotton stored. It was further held that the plaintiff had something more than a landlord's lien on the crops ; he had 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, therefore, 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 regard to the ownership of crops raised or any other matter concerning the same. Horsely v. Moss & Penning- ton, 5 Tex. C. A. 341. TEXAS DECISIONS. 863 Same — Vendee of bailee must return goods to either bailor or to true owner, or he is liable for their value: — H., a warehouse- man, received certain goods on storage. Later he sold the ware- house to J., and J. received possession of the warehouse with the property therein. J. then sold the warehouse to M., who converted the goods to his own use. Action by owner of goods against J. Held: that J., receiving the goods under the cir- cumstances, was liable as a depositary bailee, and was liable for gross negligence in delivering goods to M. in absence of evidence that M. was a responsible person. In view of M.'s announced purpose of disposing of the goods, it was the absolute duty of J. to either return the goods to his bailor, H., or to the true owner, and his failure rendered him liable for their value. Rex v. James. 131 S. W. 248, 249. C. Safe deposit boxes — Liability for loss of contents: — -Plaintiff rented a safe deposit box of defendant and deposited therein a sum of money which was missing when plaintiff next opened the box. During this interval of time plaintiff lost the key and, by finding, it came into possession of defendant. The defendant was a bailee for hire with reference to contents of box, and plaintiff was only required to show the deposit of the money in the box and the disappearance of the same therefrom, to make out prima facie case of liability. Defendant was at all times required to exercise that degree of care which a prudent person would have exercised to prevent unauthorized third persons from having access to the box. The jury found for the plaintiff, and the judgment was affirmed on appeal. Guaranty Trust Co. v. Dilts, 42 Tex. Civil App. 26, 29. M. Pledge — Agreement — Right to sell — Pledgee need not zuait for 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 subjecting the property pledged to the payment of the debt; further, such an agreement may contain a valid provision to the effect that no notice need be given after default S64 TliXAS DKllSlONS. and that sale may ho cither at auction or privately, in the ahsenee of such agreement as to notice, the pledgee must give a reasonahle notice of the time, place and manner of sale. The pledgee is not ohliged to wait until the most favorable market may be secured lor the sale of the property. King & Co. v. T. B. & Ins. Co., 58 Tex. 669. N. Loss h\ fire — When warehousemen liable: — Where goods in storage have been destroyed by fire the warehouseman is liable for the resulting loss if he were guilty of negligence, indifference or imprudence. Vincent v. Rather, 31 Tex. 77. Same — Extent of zvarehouseman's liability: — A warehouseman 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 warehouse- man or his servants. Texas & P. Ry. Co. v. Weaver, 3 App. Cas. sec. 61 ; M. P. Ry. Co. v. Douglas & Sons, 2 App. Cas. sec. 30. Sayne — Negligence — Insurance company subrogated to the rights of assured: — Defendant granted B. permission to erect a warehouse on its right of way, upon agreement to save defendant harmless from any demand on account of construction and main- tenance of building, and also to insure building and contents for benefit of defendant; and that defendant should not be liable for loss by fire to building or contents caused by its engines, etc. B. sold certain contents of building to plaintiff, and assigned policy to plaintiff, excepting from such transfer certain interests. Loss occurred and insurance company paid B. therefor. Held: that insurance company was subrogated to rights of assured and to all rights that assured may have had against defendant for the negligent destruction of its property by fire. When a railway company negligently destroys the property of a third party it is liable for the loss, whatever may have been its contract with another party on whose premises the property was stored. Mc- Adams v. M. K. & T. Ry. Co., 19 Tex. Civ. App. 82. Same — Storage of cotton incident to its compression: — Cotton was left with defendant compress company for compression and a charge made for the compression but not for storage. It was damaged by fire. Held: that the storage of the cotton was an TEXAS DECISIONS. 865 incident to its compression and that it was defendant's duty to exercise ordinary care in the storage of same. Locb Compress Co. V. Bromberg & Co., 140 S. \\\ 475, 477. 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 high rate of speed emitting a large quantity of sparks, held these facts were sufficient to show negligence on the part of the railroad. Texas & 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 defendant, a warehouseman, is upon the plaintiff. T. & P. Ry. Co. v. Capps, 2 App. Cas. sec. 36. O. Measure of damages: — Action for damage to corn stored. The ordinary measure of damages is the difference between the value of the corn before the damage was done at the time agree on for redelivery and its value after the injury. Held: that the plaintiff was also entitled to recover, in addition, the storage charges paid by it after the six months' period had elapsed, as well as certain freight charges advanced to the railway company and which would have been repaid had the corn been moved from the elevator within the agreed six months. Arhiicklc Bros. v. Everybody's Gin and Mill Co., 148 S. \\\ 1136. P. Advertising "Fireproof" warehouse — Storage in another zvare- house not fireproof not due care — Mistake — Custom: — The own- er of cotton shipped the same by railroad to the defendant 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 receipt in which it was stated that the cotton was stored in his own warehouse, and a letter accompanied the same which explained the circum- stances. It appeared that the warehouse in which the cotton was actually stored was not fireproof and further that the defen- dant's warehouse was fireproof and that he luul advertised this 55 S6G TEXAS DECISIONS. fact. Tliero was also exidciice to show that it was probable that the owner knew that the defendant's warehouse was fire- proof and that it constituted an inducement for him to have his cotton stored therein. Shortly after its storage the cotton and warehouse were destroyed by lire. It was held that the owner of the cotton had the right to have 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 precaution 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 liability could not be overcome by evidence of a usage in the city that where cotton was deposited in the wrong warehouse through a mistake it was the custom of warehousemen to allow it to remain there. Vincent v. Rather, 31 Tex. 77. Insurance — By warehouseman on his own property and that of others: — In action against a warehouseman upon the theory that defendant had insured plaintiff's property in a fire insurance contract reading. "On hay in bale, their own or held by them in trust," etc., and after loss had collected and held proceeds for plaintiflf; it was held error to exclude parol evidence to show that the policy did not cover the hay of plaintiff. Before plaintiff could claim any benefit under a policy executed under such circumstances, he must show that he elected to adopt the acts of defendant in procuring insurance on his property, of which defendants had notice before its force as a policy on his property had been impaired. Pittman & Harrison v. Harris, 24 Tex. Civil App. 503. Same — Consignee to sell on commission may insure in his own name, and insurance agent by issuing policy to him and accepting premium, waives conditions inconsistent zvith such insurable in- terest:— FlamtiEs procured fire insurance upon stock of bar fixtures, etc., consigned to them for sale on commission. The insurance agent issuing the policy had knowledge of the title and ownership of property insured, but issued policy in name of plaintiff's without endorsing on the policy what was required by its printed terms, viz., a mention that the interest of the insured was other than unconditional and sole ownership. Plaintiffs, TEXAS DECISIONS. 867 by their contract with their consignor, were obligated to fully insure the goods. Defendants claimed breach of conditions of policy as to ownership and denied liability Held: that when the agent of the insurance company issued the policy in the name of plaintiff with a knowledge of the ownership and title of the property insured, he, for the company, waived the provisions relied upon which would avoid the contract, and a judgment for defendant was reversed. Wagner & Chabot v. Westchester F. Ins. Co., 92 Tex. 549, 555. Same — Warehouseman collecting a charge sufficient to insure property for full value, and failing so to do, is liable for full value: — An action against warehouseman for value of rice des- troyed by fire while in defendant's warehouse. Plaintiff had delivered the rice to defendant to be milled at 35 cents a barrel and had also paid the defendant two cents per sack for insurance, as well as being charged for brokerage, etc. Defendant held an insurance policy covering all rice in the warehouse and after loss pro rated the insurance money received. Evidence showed that the two cents per sack charged was sufficient to pay for full value insurance for four months, and that loss occurred within 15 days. Evidence introduced of custom to insure rice for full value and a charge of two cents per sack for same. Held: if there was a custom or usage of trade under which rice mills charged a certain sum for full insurance on rice, and plaintiff acted with reliance upon that custom, which was known to defendant, his conduct in not using the tax levied on plaintiff for the purpose for which it was intended, by failing to insure for full value, could not relieve defendant of his liability for failure to insure. Judgment for plaintiff affirmed. Broussard v. South Texas Rice Co., 120 S. W. 587, 591. Q. Warehouse receipt — Not a "Negotiable instrument" — Bona fide holder — J.ost receipt — Indemnity not required: — Warehouse receipts which arc in form payal)lc to l)earcr arc not negotiable in the sense of bills and notes under the law merchant. Even though one ol)tain pos.session of a warehouse receipt in a manner which would constitute him a h(nta fidr holder of a negotiable instrument, nevertheless he cannot recover on such a receipt if the owner of the property represented thereby has not parted S(i8 TKXAS DlalSlDNS. with tlic tillo. It is well settled that the title to personal property cannot be derived from t)ne who has found it or stolen it from the owner; therefore, to hold that warehouse reccii)ts pass title to the pro])erty they represent, in the same manner as nei^^otiable instruments pass title to money, would be in effect 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 negotiable instrument as a condition precedent to recover does not exist in the case of a lost warehouse receipt. Clay & Broivnc v. Ga(ic & IVood, 1 C. A. 661. SiVtit' — N on-negotiahlc receipt — Compress company entitled to notice of transfer: — The defendant compress company issued a receii)t which after stating date, place, innnbcr, etc., provided : "Received from West Cotton Yard for account of Will Rives, mark at owner's risk forty-two bales of cotton. Not responsible for water damage or loss or damage by fire. This receipt must be returned on delivery of cotton and is non-negoti- able." Rives, for a valuable consideration delivered the receipt to a bank the defendant in error and thereafter Rives received the cotton from the compress company, stating the receipt was among his papers and would be delivered. The compress com- pany had no notice of the transfer of the receipt by Rives. It was held that the receipt was not negotiable by the law mer- chant and was therefore within the terms of Sees. 308 and 309 of the Revised Statutes of the State hence the compress company was entitled to notice of the transfer from the bank and in the absence of such notice had the right to deal with Rives as the owner of the cotton. Rives in obtaining the cotton from the compress company without returning the receipt gave a reason which under the circumstances was reasonable and the compress company had the right to rely ui)on his statement. Judgments of the courts below in favor of the 1)ank reversed and judgment directed in favor of the compress company. Samford Compress Co. V. Farmer's & Mechanics Natl. Bank, 143 S. W. 1142. Same — Restrictions as to transfer: — Defendant, a cotton ware- houseman, issued tickets containing provision "Transferable only on the books of yard." Held, that such restriction embodied in the ticket itself should at least be given the effect of requiring proof that tickets had been transferred on books of defendant. TEXAS DECISIONS. 869 or that cotton was in his possession when plaintiff acquired the tickets, and that while holding such possession, defendant re- ceived notice that plaintiff had bought the cotton. Sanger v. Travis County Farmers' Alliance, Z7 Tex. Civil App. 321, 323. 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. Friedman, Kciler & Co. v. Peter et al., 18 Tex. C. A. 11. Same — Delivery of zvarehouse receipt or bill of lading is a constructive delivery of property therein mentioned and pledgee may hold such property against all comers: — Appellee advanced money to a cotton buyer to pay for cotton, it being agreed that appellee should hold the cotton as security for the money ad- vanced. When the cotton was shipped, the railroad executed its bills of lading therefor and these bills of lading were delivered' to appellee in pursuance of the agreement. The receipt issued by a compress company stated on its face that it was non negotia- ble and w^as not endorsed. Held: that appellee by this dealing had the right to hold the cotton against all comers until its debt was paid; that bills of lading and warehouse receipts under the law are not considered negotiable in the sense that bills, notes, etc., are negotiable, but are regarded as representatives of the property covered by them, and when delivered, with or without endorsement, in accordance with the agreement of parties, con- stitute a sufficient constructive delivery to pass title to the proper- ty. National Bank of Cleburne v. Citiaens National Bank, 41 Tex. Civ. App. 535, 538. R. Bill of lading — Only indicates prima facie ownership in con- signee: — A bill of lading evidences prima facie ownership of the goods in transit in the consignee. Evidence may be given to show that the consignor is still the owner of the property. Craig & Ogden v. Marx & Kempncr, 65 Tex. 649. Same — Effect of transfer — Not "negotiable instruments" : — The transfer of a bill of lading can give no higher title to the transferee than would a delivery of the property to him. Where bills of lading are made negotiable by statute the holder, in the absence of cither title to the goods or authority to transfer them, cannot, by a transfer of the instrument, pass the right of property 870 TEXAS DFCISTONS. in ilio i^ooils. oven ilioii.^li ;i /'('//(( /;^ Api>. Cas. sec. 340; Shaiv v. Railccay Co., 101 U. S. 557. Same — ./ eiistom contrary to the terms of, )niist be proven to he uniform: — Where a custom to recognize depositors without the production of the storage tickets is relied upon, which is con- trary to the terms of such tickets, the custom must be proven to be uniform and continuous. Santjer v. Travis County Farmers' Alliance, 37 Tex. Civ. App. 321. T. Liabilitx for injury — Heavy boxes improperly packed: — The plaintiff, a drayman, called at the warehouse of the defendant 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 placing 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 injury to the plaintiff that they were to find for him, was held to be a correct instruc- tion. Mallory & Co. v. Smith, 76 Tex. 262. UTAH LAWS. 871 CHAPTER XLIV UTAH. LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in Utah. It took effect July 1, 1911, Laws of Utah, 1911, Ch. 139, p. 271. Also this volume, p. 1. The sixtieth section of the act is as follows : Repeal: — Section 1403 of the Compiled Laws of Utah, 1907. and all acts or parts of acts inconsistent with this act are hereby repealed. Embezzlement defined: — Embezzlement is the fraudulent appropriation of property by a person to whom it has been in- trusted. Compiled Laws of Utah, 1907, sec. 4374. By bailee, tenant, attorney in fact: — Every person intrusted with any property as bailee, tenant, or lodger, or with any power of attorney for the sale or transfer thereof, who fraudulently converts the same, or the proceeds thereof, to his own use, or secrets it or them with a fraudulent intent to convert to his use, is guilty of embezzlement. Id. sec. 4378. DECISIONS AFFECTING \V.\REHOUSEMEN H. Storage charges — Lien — Not zvaived by suit for amount due — Lien may be enforced by equitable action: — In a replevin suit for goods on storage with the defendant warehouseman it appeared that plaintiffs were the executors under the will of M., who had stored the goods. Defendant had presented its claim to them as executors and it had been rejected. I^efendant then sued ihc executors on the account and did not assert its lien. After the institution of the replevin suit defendant dismissed its suit on the account and answered in the replevin suit a^^'^erfing its warehouse- S72 UTAH DECISIONS. luairs lien for its cliaroos uiuler soi\ 1403 of tlic Compiled Laws U)07. The executors rcspoiuK-d dfiuini; the lien, i)leadin<;- the statute o{ liniitalions and further that defendant had waived and lost its lien hv having elected its remedy in its suit on the account. It was held tiiat the lien i^iNcn by section 1403 was not exclusive as section 1405 gives to the lien claimant concurrent or cumula- tive remedies and that such claimant could pursue either without waiving the other, except that he could not receive more than satisfaction of his claim. Alsc^, held that such a lien could be foreclosed by an equitable action. Howard v. /. P. Paulson Co.. 127 Pac. 284. VERMONT LAWS. 873 CHAPTER XLV VERMONT. LAWS PERTAINING TO WAREHOUSEMEN The Uniform \\'arehouse Receipts Act, with the changes here noted, is in force in Vermont. It was approved December 12. 1912, Laws of Vermont 1912, No. 186, p. 226. See this volume p. 1. The first section of the Act as enacted in Vermont is as follows : "Warehouse receipts may be issued by a warehouseman as provided for in and authorized by section 4998 of the Public Statutes." The section of the Public Statutes mentioned is given below. By the sixtieth section the following sections of the Public Statutes are repealed: 4999. 5000, 5001, 5002, 5003, 5004, 5006, 5007, 5008 and 5009. Establishment — Receipts: — A person may establish and maintain a i)ublic warehouse, and may receive goods, wares, merchandise, provisions and other commodities for storage there- in, and shall issue warehouse receipts therefor to the person from whom such property is received ; and he may issue warehouse receipts for his own property stored in such warehouse ; but no person shall issue a receipt for such property received for storage. or for his own property stored in such warehouse, unless he dis- plays and maintains in a conspicuous manner, on the front of the building used as such warehouse, the words "Public Ware- house." Public Statutes, Vermont, 1906, sec. 4998. Penalty — For violating chapter : — A warehouseman or other person who willfully violates a ])rovision of this chapter shall be imprisoned not more than three years or fined not more than one thousand dollars, or both ; and a person aggrieved by the violation of such provision may maintain an action on the case founrled on this statute against such person to recover immediate or consequential damages which he has sustained by reason of L S74 VERMONT DECISIONS. siicli violation whether such person is convicted of such violation (>r not. /(/. sec. 500S. DECISIONS AI<"FECTING WAREHOUSEMEN A. Bailment — Special contract: — A bailee may make a special con- tract with his bailor by which he will be absolutely 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 negligence. Ames & Co. v. Melendy, 64 Vt. 554. Sanie — Power of sale — Personal trust: — A bailment of pro- perty with the power of sale is a personal trust to the bailee which he cannot delegate. Hunt v. Douglass, 22 Vt. 128. B. Ordinary care: — A warehouseman is bound only to use ordin- ary care and diligence in the safe-keeping of goods intrusted to him. Blumenthal 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 custody of the warehouseman 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. Burton and Ano. v. Wilkinson and Ano., 18 Vt. 186. Same — Sheriff breaking outer door:—li the goods of the debt- or 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. Same — Action for trespass : — Plaintiffs sued in trespass for the breaking and entering of their warehouse by the defendants and the taking of certain goods therefrom. Defendants pleaded they took the goods by virtue of legal process. The plaintiffs replied that the goods were the property of A and not of the debtor. The defendants rejoined, setting forth that A had VERMONT DECISIONS. 875 brought an action against them for the goods, and in a trial on the merits judgment had been given for defendants. Held, on demurrer 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 — ]\'rongf\d sale: — A wrongful sale of property by a bailee is a conversion thereof as to both the bailee and the purchaser. An action of trover will lie against both for such a conversion. Buckmaster v. Moiver & Ford, 21 Vt. 204. L. Trover — Will lie against bailee if property put to an iynproper 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; Buckmaster v. Motver & Ford, 21 Vt. 204; Alvord v. Davenport, 43 Vt. 30. Same — Wrongful detention: — An action of trover will lie against a bailee for the wrongful detention of property intrusted to him after failure to deliver on demand. Dohorty v. Madgett, 58 Vt. 323. P. Insurance — Insurable interest — Warehouseman compromising loss by fire liable to bailor for full value: — Plaintiff had certain goods on storage with defendant. Defendant had an insurance policy covering goods "their own, or held in trust, or on commis- sion." In adjusting loss under the policy with insurance com- pany, the defendant, without knowledge of plaintiff, compromised the claim for damage for less than the full amount of in- surance covering all the goods. Held, that defendant was liable to plaintiff for full value of plaintiff's goods, notwithstanding settlement with insurance company. The special property of a bailee for hire is of sufficient value to give him an insurable interest in the subject of the bailment. Southern Cold Storage and Produce Co. v. Dechman, 73 S. W. 545. R. Bill of lading — Exemptions — Conditions printed on the back thereof: — In a case where there were exemi)tions and conditions printed on the back of a bill of lading, which were not referred to I S7G VERMONT DIVISIONS. Oil the f.'ioo tlicrcdf. and thoro was no c\i(lcncc in the case to show that notice iA these eoiuHtions liad been hroiitj^lit to the attention of the shipper of the i^^oods. it was held tliat as the face of the instrument imported an absolute and exi)ress undertaking that evidence modifying this undertaking shonhl come from the party apparently so bound. Nc2vcll rt al. v. Smith c'r Clark, 49 Vt. 255. Same — Effect of transfer as eoUateral: — The endorsement and transfer of a l)ill of lading, as collateral security for the payment of a draft, vests in the transferee title to the property represented by the l)ill of lading. Tildcn v. Minor et al., 45 Vt. 196; Davis & .■liibin v. Bradlex &■ Co.. 28 Yt. 118. VIRGINIA LAWS. 877 CHAPTER XLVI VIRGINIA. LAWS PERTAINING TO WAREHOUSEMEN The Uniform Warehouse Receipts Act is in force in \'irginia, with the exception of the sixty-first section which is omitted, and the sixtieth section, which is as follows: Inconsistent legislation repealed: — All acts or parts of acts inconsistent with this act are to that extent hereby repealed. The act was approved March 14. 1908, Acts of Assembly 1908, Ch. 290, p. 508, also appears in supplement to V'irginia Code, Pollard, 1910. p. 801. Also this volume p. 1. Transfer of receipts issued by licensed warehouses : — ^Ware- house or other storage receipts, with the word "negotiable" plainly written or stamped on the face thereof, issued by any person keeping a licensed warehouse or other licensed place of storage in this state, for goods, wares, merchandise, cotton, grain, flour, tobacco, lumber, iron, or other commodity stored with such person, shall be transferable by indorsement and delivery, wheth- er the property specified in such receipt be owned by the person issuing the same, or another ; and any person to whom such receipt is so indorsed and delivered shall 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 transfer, whether the receipt and indorsement be admitted to record or not, subject however to storage and other charges of the person keeping such l^lace <>t storage. Code of Virginia, Pollard. 1904, sec. 1791. When receipts not to be issued; duplicate receipts: — No per- son shall issue any such licensed warehouse or other licensed storage receipt unless he be the keeper of a regularly licensed warehou.sc or other licen.sed jilace of storage in this state for goods, wares, niercliaiulise, cotton, grain, iLnir, tobacco, hinihcr. iron, or other commodity stored with such person and shall STS VIRGINIA LAWS. li;i\c iluly paid to the commonwealth ihc tax for such license, and iniloss the properly iherein mentioned shall he actually in store or in his premises and under his control at the time of issuing such receipt, nor shall a second or duplicate receipt for any property he 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 person 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 which said original receipt was given ; and it shall be the duty of such person keeping such licensed warehouse or licensed place of storage to cause to be posted prominently over the door of his place of business a sign indicat- ing that such warehouse or place 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 ofifense. Id. sec. 1792. Prohibition against sale, etc., of property for which receipt was issued, without its surrender: — No person shall sell, in- cumber, transfer, deliver, remove, or permit to be removed be- yond his immediate control, except to enforce his lien for storage and other charges, any property for which a receipt has been given as aforesaid, without the surrender and cancellation of such receipt or the consent of the holder indorsed thereon, or, in case of any partial delivery, the indorsement of such delivery thereon. Nothing herein contained shall be so construed as to prohibit the bona fide delivery of the property to the person entitled thereto, if the receipt l)e 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 suc- cessive weeks at the front door of the courthouse of such county, VIRGINIA LAWS. 879 and proof of such publication or posting shall be filed with the person by whom the receipt was issued. Nor shall anything herein contained be so construed as to impose any liability on any depositary for any property mentioned in any receipt as aforesaid taken from his possession by any legal process, Init it shall be his duty, when such property is so taken from his pos- session, or any process affecting or relating thereto is served on him. forthwith to give notice of the fact, if practicable, to the holder of such receipt. Id. sec. \79?>. Storage of property — A bailment — What receipt to state : — Whenever any grain sliall be delivered to any person for storage as provided in section seventeen hundred and ninety-one, such delivery shall in all cases be deemed a bailment and not a sale of the property, nothwithstanding 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 substittited for it by the depositary, shall not be subject to any of the liabilities of said depositary whatever. In 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 aforesaid, wrong- fully and fraudulently remove, or permit to be removed from its place of storage, the property mentioned in such receipt, or any part thereof, he shall be deemed guilty of larceny thereof. If such warehouseman, or other depositary, wrongfully and fraudulently violate any other provision of this chapter, he shall be fined not exceeding one thousand dollars, or, in the discretion of the jury, be confined 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. Establishment of warehouses — Their Discontinuance: — To- bacco warehouses, which were public warehouses of the day before this Code takes effect, shall continue to be such; •"^SO VIRC.INIA LAWS. atul the several county and corporation courts may hereafter authorize the erection ot" tobacco w^ireliouses, or may es- tablish the same, as public warehouses, within their respective counties and corporations; which said warehouses shall be con- structed, or shall ha\e been constructed, so as to keej) safely, and guard against lire and weatlier as far as i)racticable. all to- bacco stored therein, and shall be kept in good repair and at all times (Sundays excepted) be open for receiving, storing, selling, and delivering 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 inten- tion to do so once a week for four successive weeks in some newspaper published in the county or corporation wherein such \varehouse is situated, or if no newspai)er be published therein, after having posted such notice at the front door of the court- house 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, by and with the advice and censent of the senate, for the term of four years, commencing on the first day of October succeeding 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 this code takes effect shall continue therein until the term for which they were appointed shall have expired by limitation. Id. sec. 1798. How vacancy filled: — If a vacancy occur in the office of sampler during his term, the governor shall appoint another in his place to serve for such ])art 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 corporation 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 days 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 VIRGINIA LAWS. 881 accounts, and if he fail to do so, he shall for such failure forfeit one hundred dollars. Id. sec. 1800. Deputy samplers: — Any sampler may nominate to the gov- ernor 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 principal 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 sam- plers, 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 charge- able with the delivery of such hogsheads and casks of tobacco, but in no way accountable for any loss of weight or defect of (juality of said tobacco, which may have occurred without their fault. Id. sec. 1802. Sampling, weighing and branding 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 hogshead, cask, tierce, or box; the quantity of net tobacco therein, 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. Weighing leaf tobacco in warehouses; proprietors to fur- nish itemized statements; penalty: — (1) All leaf tobacco sold upon the floor 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 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. 56 882 \IIr of fish and iodo- fonn. a judgment against the defendant company was sustained. It was held to be for jury to determine whether or not, in storing the meats together, defendant had exercised such care as the contract contemplated and whether or not the lack of such care was the proximate cause of the damage. Smith v. Diamond Ice & Storage Co., 118 Pac. 646. 647. Satnc — J There oivncr has control of premises — Negligence on ozinter's part: — Contracts, pleadings and evidence considered, and held, where plaintiff had control of the premises, rented to him by defendant warehouseman, that if loss occurred from plaintiff's failure to use ordinary care in handling or inspecting the meat or in directing the refrigeration of the room, if these duties were put upon him by the contract he cannot recover. He cannot recover if the loss occurred through his own fault or negligence. Patterson v. Wenatchee Canning Co., 110 Pac. 379. Same — Rule stated, exceptions: — Where merchandise, not perishable in its nature, is delivered to a bailee for hire in good condition, and a redelivery is not made, or upon a redelivery the goods are found damaged, a prima facie case of negligence is made out; yet the subject of the bailment must be of such a nature that loss or injury could not ordinarily have occurred without negligence on the part of the bailee. The chattel should be such that it would not deteriorate or perish from internal defects, or through the operation of natural causes; or the defect be not the result of ordinary wear and tear. When a situation is shown which could not have been produced except by the operation of abnormal causes, the onus rests upon the bailee to show that the injury was caused without his fault. Held, though the meat was in first class condition when brought into defendant's warehouse, that the loss and damage might have occurred to some extent without negligence on part of bailee, and jury should have been given instructions accordingly. Patterson v. Wenatchee Canning Co., 53 Wash. 155, 158; 101 Pac. 721. Delivery — Warehouseman's duty: — The duty of a warehouse- man to turn out wheat is performed when he delivers the specific article on the cars, or, if the receipt be in such form, wheat of WASHINGTON DECISIONS. 915 like kind and quality. Union Elevator & Warehouse Co. v. Farmers' Warehouse, 125 Pac. 960. O. Measure of damages: — Measure of damages is the fair mar- ket value at the date the meat was sold and not at the time when plaintiff intended to sell it. Defendant's liability could not be extended beyond the termination of the bailment. Patterson V. Wenatchee Canning Co., 53 Wash. 155, 159; 101 Pac. 721. Q. Warehouse receipt :^A mere receipt signed by a mill owner as "warehouseman" does not make it warehouseman's receipt. Steaiihli v. Blaine Nat. Bank, 11 Wash. 426. Same — Printed limitation of value — Warehousemen not pro- tected — When: — Plaintiff delivered to defendant box of house- hold goods plainly marked on outside, "P. Gannon, Storage. This side up. Glass. Value $500," and received receipt contain- ing, among other conditions, one printed in very fine type limit- ing liability for loss or damage to $25 "unless the true value is herein stated." Box was lost and plaintiff recovered verdict for $340. Held, that plaintiff had done his duty and had complied in spirit with the provisions of receipt, and that it was the duty of the defendant to have incorporated the value mentioned in the receipt. Gannon v. Seehorn, 86 Pac. 1116. Same — The real contract, though oral, and not the unassented to conditions of a warehouse receipt subsequently delivered, are binding: — Defendant entered into oral contract with plaintiff to store plaintiff's goods. A few days later defendant mailed to plaintiff a warehouse receipt, signed by defendant only, con- taining other and different conditions than those of the oral contract. Plaintiff kept the receipt and did not notice the different conditions. Held, that parol evidence was admissible to show what was the real contract, and a verdict for plaintiff affirmed. Windell v. Readman W^archousc Co., 30 Wash. 469. Same — Pleading: — Under the reformed procedure in plead- ing, a complaint states a cause of action against a warehouseman by alleging that the wheat was stored and after such storage was sold to plaintiff ; that demand had been marie for same, and iilti WASHINGTON DECISIONS. the return of tlio receipt proffered, together with storage charges due; tliat ])hiiiitifF was owner of the wheat and the failure of the warehouseman to deliver said wheat or any part thereof, or to pay plaintilT the value of the same rendered him liable. Bank v. Young, 20 Wash. 337. Same — Jl'licn informal rcccif^t is sufficient — Duty of zuare- houseman: — A memorandum receipt, not in statutory form, which had been transferred with a sale of the wheat described therein, held sufficient upon which to maintain an action. The warehousemen were bailees for hire, and it was their duty to deliver the property to the owner, whoever he may be, after the rightful charges had been paid. Bank v. Young, 20 Wash. 337. Same — Negotiability: — Warehouse receipts made negotiable by statute only pass by indorsement the interest which the holder has in and to the property represented by the recipt. Yarwood v. Happy, 18 Wash. 246. Same — Negotiated by 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 recover the receipt from the tliird party. Id. WEST VIRGINIA LAWS. 917 CHAPTER XLVIII WEST VIRGINIA. LAWS PERTAINING TO WAREHOUSEMEN Note : — It seems there are in \\'est \^irginia no laws pertain- ing to warehousemen as such. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — Bailee cannot dispute bailor's title — Exceptions to the rule: — The general doctrine is well established that, in ordi- nary cases, the bailee cannot dispute his bailor's title any more than a tenant can his landlord's. But the general rule has numerous exceptions, in which he will be permitted to do so ; as in a case where it can be shown that the latter fraudulently obtained possession of the goods, or that they have been re- covered from 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. Kelly V. Patchell, 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. \Micre, 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 com- plainant charged the defendant with wrongful conversion of the property, the decree of the court dismissing the bill was affirmed on appeal. Thompson el al. v. ]\'hitaker Iron Co. ct 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 1)c made cannot 918 WEST VIKCINrA DECISIONS. he indefinitely prolont^ed. A creditor cannot keep his debtor in debt indefinitely. W'liat is a reasonably time is not settled by any precise rule: if would seem reasonable to require that demand should be made w iiliiii the time limited by the statute for bring- ing the action. The same reason exists for hastening the de- mand as for hastening the commencement of action. Id. Siiiiic — Whether an action be ex contractu or ex delicto still one of contract: — In general it is optional with the plaintifif to declare against a bailee in form ex contractu for the breach of the express contract entered into by him or on the promise im- plied from the act of bailment ; or, in tort for the breach of the duty, which is by law impliedly 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. Richtcr, 31 W. Va. 858: Maloney v. Barr. 27 W. Va. 381. M. Pledge — A bailment — Definition: — A pledge may be defined to be a bailment of goods by a debtor to his creditor, to be kept by him until the debt is discharged. First National Bank v. Hark- ness et al.. 42 W. Va. 156. N. Loss by fire — Express company not liable, when: — Goods sent by express to consignee were received late Saturday afternoon. Contrary to custom, the express company did not mail to con- signee a notice of their arrival, and consignee learning of their arrival through other sources on Monday night, called on Tues- day for the goods. Meanwhile the freiglft room where the goods had been placed, had been forcibly entered and the goods stolen. Held that the express company's duty as carrier had ended, that the failure to notify consignee was not the proxi- mate cause of the loss, and that the express company was not liable for their value. FJutchinson v. U. S. Express Company, 59 S. E. 949. R. Bills of lading — Effect of transfer — As collateral: — The trans- fer 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 ])ledgee thereunder are the same as those of an actual purchaser of the goods represented, for value. WEST VIRGINIA DECISIONS. 919 Neill & Ellingham v. Rogers Bros. Produce Co., 41 W. Va. 2)7 ; Dou's V. Bank, 91 U. S. 618. U. Taxation: — A warehouseman held to be a trustee within the meaning of clause d, sec. 55, chapter 35, of Act of 1905, and that he must list in the name of the owner property stored. Upon his refusal so to do the Tax Assessor may rightfully assess it in the name of the warehouseman. Hannis Distilling Co. v. Berkeley Countv Court, 71 S. E. 576. 920 WISCONSIN LAWS. CHAPTER XTJX WISCONSIN. LAWS I'lCKTAININf, Td WAREHOUSEMEN Note: — On June 3. 1909. there was approved the following act. which took effect September 1. 1909. On account of the changes made therein in the Uniform Warehouse Receipts Act. it was deemed best to incorporate the entire act as passed l)y the Legislature of Wisconsin. It is chapter 291, Laws of Wisconsin, 1909, p. 308. See also Statutes of Wisconsin, 1911, Ch. 78 m, p. 1142. AN ACT TO REPEAL SECTIONS 1747-81 TO 1747-87, inclusive, and sec- Tioxs 1747-91 TO 1747-99. inclusive, of the statutes; to amend sec- tions 1675-1, 4194, 4424 and 4425 of the statutes, and to create sec- tions 1684M-1 to 1684m-66. inclusive, of the statutes, providing for laws as to warehouse receipts uniform with those of other states. The people of the state of Wuconsm, represented in senate and as- sembly, do enact as follows: Section 1. Sections 1747-81 to 1747-87, inclusive, and sections 1747-91 to 1747-99, inclusive, of the statutes, are repealed. Sec. 2. Sections 1675-1, 4194, 4424, and 4425 of the statutes are amended to read: .Section 1675-1. An instrument to be negotiable must conform to the following, requirements : 1. It must be in writing and signed by the maker or drawer. 2. Must contain an unconditional promise or order to pay a sum certain in money. 3. Must be payable on demand or at a fixed or determinable future time. 4. Must be payable to order or to bearer. 5. Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty. But no order drawn upon or accepted by the treasurer of any county, town, city, village, or school district whether drawn by an officer thereof or any other person, and no obligation nor instrument made by any such corporation, or an}' officer thereof, unless expressly authorized by law to be made negotiable, shall be, or shall be deemed to be, negotiable according to the custom of merchants, in whatever form they may be drawn or made. Warehouse receipts, bills of lading, and railroad receipts upon the face of which the words "not negotiable" shall not be plainly written, printed, or stamped, shall be negotiable as provided in section 1676 of the Wis- consin statutes of 1878, and in sections 4194 and 4425 of these statutes, as the same have been construed by the supreme court. Sec. 4194. * * * Bills of lading, or railroad receipts given for any goods, wares, merchandise, lumber, timber, grain, flour, or other produce or commodity stored, shipped, or deposited with any * * * wharfinger, vessel, boat, or railroad company or other person, on the face of which WISCONSIN LAWS. 921 shall not be plainly written the words "not negotiable" may be transferred by delivery with or without endorsement thereof; and any person to whom the same may be so transferred shall be deemed and taken 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 persons; but no such property shall be delivered except on surrender and cancellation of said original receipt or bill of lading or the endorsement of such delivery thereon in case of partial delivery. Sec. 4424. Any * * * wharfinger, master of a vessel or boat, or any officer, agent, or clerk of any railroad, express, or transportation company who shall issue any receipt, bill of lading, 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, lumber, timber, grain, flour, or other property, produce, or commodity, unless at the time of issuing 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 or 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, except 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, upon the indorsement thereon of such partial delivery, unless required by legal process, or shall issue any second or duplicate receipt or bill of lading, for any such property, while anv former receipt or bill of lading for any such property 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 year or by fine not exceeding one thousand dollars. Sec. 4425. Any such receipt, bill of lading, voucher, or other document as is mentioned in the preceding section shall be transferable by delivery thereof without endorsement 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 negotiable" plainly written or stamped on the face thereof. * * * Sec. 3. There are added to the statutes sixtj'-six new sections to read : Section 1684m-l. Warehouse receipts may be issued by any warehouse- man. Sec. 1684m-2. 1. Warehouse receipt need not be in any particular form, but every such receipt must embody within its written or printed terms : (1) The location of the warehouse where the goods are stored. (2) The date of issue of the receipt. (3) The consecutive number of the receipt. (4) A statement whether the goods received will be delivered to the bearer, to a specified person, or to a specified person or his order. fS) The rate of storage charges. (6) A description of the goods or of the packages containing them. (7) TJK" signature of the warehouseman, which may be made by his authorized agent. (8) If the receipt is issued for goods of which the warehouseman is owner, cither solely or jointly or in common with others, the fact of such ownership, and (9) A statement of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien. Tf the precise amount 922 WISCONSIN LAWS. of such advances made or of such liabilities incurred is, at the time of the issue of the receipt, unknown to the warehouseman or to his agent who issues it, a statement of the fact that advances have been made or liabili- ties incurred and the purpose thereof is sufficient. 2. A warhouseman shall be liable to any person injured thereby, for all damage caused by the omission from a negotiable receipt of any of the terms herein required. Sec. 1684m-3. Every, warehouseman shall keep in the office in which the business of the warehouse is transacted a register in which shall be entered all the facts with reference to each receipt issued, as required by section 1684m-2. When the wareliouseman shall cease to be responsible for the delivery of the property described in the receipt, the fact and date of the delivery of the property and such other facts as may terminate liability on such receipt, shall be entered on such register in connection with the original entry of such receipt. Such register shall be open to the inspection of the owner or holder of any such receipt, or of any person who shall present the same at the office of the warehouseman. The warehouseman shall be responsible to any person relying on such entries in good faith for any loss or damage which he may sustain through any failure to make the entries herein required. Sec. 1684m-4. A warehouseman may insert in a receipt, issued by him, any other terms and conditions, provided that such terms and conditions shall not (1) Be contrary to the provisions of this act. (2) In any wise impair his obligation to exercise that degree of care in the safe-keeping of the goods entrusted to him which a reasonably careful man would exercise in regard to similar goods of his own. Sec. 1684m-5. A receipt in which it is stated that the goods received will be delivered to the depositor, or to any other specified person, is a non-negotiable receipt. Sec. 1684m-6. A receipt in which it is stated that the goods received will be delivered to the bearer, or to the order of any person named in such receipt is a negotiable receipt. No provision shall be inserted in a negotiable receipt that it is non-negotiable. Such provision, if inserted, shall be void. Sec. 1684m-7. When more than one negotiable receipt is issued foi the same goods, the word "duplicate" shall be plainly placed upon the face of every such receipt, except the one first issued. A warehouseman shall be liable for all damage caused by his failure so to do to any one who purchased the subsequent receipt for value supposing it to be an original, even though the purchase be after the delivery of the goods by the ware- houseman to the holder of the original receipt. Sec. 1684m-8. A non-negotiable receipt shall have plainly placed upon its face by the warehouseman issuing it "Non-negotiable" or "Not nego- tiable." In case of the warehouseman's failure so to do, a holder of the receipt who purchased it for value supposing it to be negotiable, may, at his option, treat such receipt as imposing upon the warehouseman the same liabilities he would have incurred had the receipt been negotiable. This section shall not apply, however, to letters, memoranda, or written acknowledgments of an informal character. Sec. 1684m-9. 1. A warehouseman, in the absence of some lawful excuse provided by this act, is bound tt) deliver the goods upon a demand made either by the holder of a receipt for the goods or by the depositor, if such demand is accompanied with (1) An offer to satisfy the warehouseman's lien. (2) An offer to surrender the receipt if negotiable, with such indorse- ments as would be necessary for the negotiation of the receipts, and WISCONSIN LAWS. 923 (3) A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the warehouseman. 2. In case the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor so accompanied, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal. Sec. 1684m-10. A warehouseman is justified in delivering the goods. subject to the provisions of the three following sections, to one who is (1) The person lawfully entitled to the possession of the goods, or his agent. (2)' A person who is either himself entitled to delivery by the terms of a non-negotiable receipt issued for the goods, or who has written authority from the person so entitled either indorsed upon the receipt or written upon another paper, or (3) A person in possession of a negotiable receipt by the terms of which the goods are deliverable to him or order or to bearer, or which has been indorsed to him or in blank by the person to whom delivery was promised by the terms of the receipt or by his mediate or immediate indorsee. Sec. 1684m-ll. Where a warehouseman delivers the goods to one who is not in fact lawfully entitled to the possession of them, the warehouse- man shall be liable as for conversion to all having a right of property or possession in the goods if he delivered the goods otherwise than as authorized bv subdivisions (2) and (3) of the preceding section and though he delivered the goods as authorized by said subdivisions he shall be so liable, if prior to such delivery he had either (1) Been requested, by or on behalf of the person lawfully entitled to a right of property or possession in the goods, not to make such deliverv, or (2) Had information that the delivery about to be made was to one not lawfully entitled to the possession of the goods. Sec. 1684m- 12. Except as provided in section 1684m-37, where a ware- houseman delivers goods for which he had issued a negotiable receipt, the negotiation of which would transfer the right to the possession of the goods, and fails to take up and cancel the receipt, he shall be liable to any one who purchases for value in good faith such receipt, for failure to deliver the goods to him, whether such purchaser acquired title to the receipt before or after the delivery of the goods by the warehouseman. Sec. 1684m-13 Except as provided in section 1684m-37, where a ware- houseman delivers part of the goods for which he had issued a negotiable receipt and fails either to take up and cancel such receipt, or to place plainly upon it a statement of what goods or packages have been delivered, he shall be liable to any one who purchases for value in good faith such receipt, for failure to deliver all the goods specified in the receipt, whether such purchaser acquired title to the receipt before or after the delivery of any portion of the goods by the warehouseman. Sec. 1684m-14. 1. The alteration of a receipt shall not excuse the warehouseman who issued it frf)m any liability if such alteration was (1) Immaterial, (2) Authorized, or (3) Made without fraudulent intent. 2. If the alteration was authorized, the warehouseman shall be liable according to the terms of the receipt as altered. If the alteration was unauthorized, but made without fraudulent intent, the warehouseman shall be liable according tn the terms of the receipt, as they were before alteration. i>l24 WISCONSIN LAWS. 3. Material and fraiululcnl alteration of a receipt shall not excuse the warehouseman who issuetl it from liability to deliver, according to the terms of the receipt as originally issued, the goods for which it was issued, but shall excuse him from any other liability to the person who made the alteration and to any person who took with notice of the alteration. Any purchaser of the receipt for value without notice of the alteration shall acquire the same rights against the warehouseman wiiich such purchaser would have acquired if the receipt had not been altered at the time of the purchase. Sec. 1684m-15. 1. Where a negotiable receipt has been lost or de- stroyed, a court of competent jurisdiction may order the delivery of the goods upon satisfactory proof of such loss or destruction and upon the giving of a bond with suflicient sureties to be approved by the court to protect the warehouseman from any lialiility or expense, which he or any person injured by such delivery may incur by reason of the original receipt remaining outstanding. The court may also in its discretion order the payment of the warehouseman's reasonable costs and counsel fees. 2. The delivery of the goods under an order of the court as provided in this section shall not relieve the warehouseman from liability to a person to whom the negotiable receipt has been or shall be negotiated for value without notice of the proceedings or of the delivery of the goods. Sec. 1684m-16. A receipt upon the face of which the word "duplicate" is plainly placed is a representation and warranty by the warehouseman that such receipt is an accurate copy of an original receipt properly issued and uncancelled at the date of the issue of the duplicate, but shall impose upon him no other liability. Sec. 1684m-17. No title or right to the possession of the goods, on the part of the warehouseman, unless such title or right is derived directly or indirectly from a transfer made by the depositor at the time of or subsequent to the deposit for storage^ or from the warehouseman's lien, shall excuse the warehouseman from liability for refusing to deliver the goods according to the terms of the receipt. Sec. 1684m-18. If more than one person claim the title or possession of the goods, the warehouseman may, either as a defence to an action brought against him for non-delivery of the goods, or as an original suit, whichever is appropriate, require all known claimants to interplead. Sec. 1684m-19. If some one other than the depositor or person claiming under him has a claim to the title or possession of the goods, and the warehouseman has information of such claim, the warehouseman shall be excused from liability for refusing to deliver the goods, either to the depositor or person claiming under him or to the adverse claimant, until the warehouseman has had a reasonable time to ascertain the validity of the adverse claim or to bring legal proceedings to compel all claimants to interplead. Sec. 1684m-20. Except as provided in the two preceding sections and in sections 1684m-10 and 1684m-37, no right or title of a third person shall be a defence to an action brought by the depositor or person claiming under him against the warehouseman for failure to deliver the goods according to the terms of the receipt. Sec. 1684m-21. A warehouseman shall be liable to the holder of a receipt for damages caused by the non-existence of the goods or by the failure of the goods to correspond with the description thereof in the receipt at the time of its issue. If, however, the goods are described in a receipt merely by a statement of marks or labels upon them, or upon packages containing them, or by a statement that the goods are said to be goods of a certain kind, or that packages containing the goods are said WISCONSIN LAWS. 925 to contain goods of a certain kind, or by words of like purport, such statements, if true, shall not make liable the warehouseman issumg the receipt, although the goods are not of the kind which the marks or labels upon them indicate, or of the kind they were said to be by the depositor. Sec. 1684m-22. A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreement to the contrary. for any loss or injury to the goods which could not have been avoided by the exercise of such care. Sec 1684m-23. Except as provided in the following section, a ware- houseman shall keep the goods so far separate from goods of other depositors, and from other goods of the same depositor for which a separate receipt has been issued, as to permit at all times the identification and redelivery of the goods deposited. Sec. 1684m-24. If authorized by agreement or by custom, a ware- houseman mav mingle fungible goods with other goods of the same kind and grade, in such case the various depositors of the mingled goods shall own the entire mass in common, and each depositor .shall be entitled to such portion thereof as the amount deposited by him bears to the whole. Sec. 1684m-25. The warehouseman shall be severally liable to each depositor for the care and redelivery of his share of such mass to the same extent and under the same circumstances as if the goods had been kept separate. Sec. 1684m-26. Whenever the failure or neglect of any warehouseman to comply with any provision of this act shall cause loss or damage to any person, such warehouseman shall be liable to respond in damages to such person to the extent of the actual damages sustained by him on account of such failure or neglect. Sec. 1684m-27. If goods are delivered to a warehouseman by the owner or bv a person whose act in conveying the title to them to a purchaser in good faith for value would bind the owner, and a negotiable receipt is issued for them, they cannot thereafter, while in the possession of the warehouseman, be attached by garnishment or otherwise, or be levied upon under an execution, unless the receipt be first surrendered to the warehouseman, or its negotiation enjoined. The warehouseman shall in no case be compelled to deliver up the actual possession of the goods until the receipt is surrendered to him or impounded by the court. Sec. 1684m-28. A creditor whose debtor is the owner of a negotiable receipt shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such receipt or in satisfying the claim by means thereof as is allowed at law or in equity in regard to property which cannot readily be attached or levied upon by ordinary legal process. Sec. 1684m-29. Subject to the provisions of section 1684m-32, a ware- houseman shall have a lien on goods deposited or on the proceeds thereof in his hands, for all lawful charges for storage and preservation of the goods; also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering, and other charges and expenses in relation to such goods ; also for all reasonable charges and expenses for notice, and advertisements of sale, and for sale of the goods where default has been made in satisfying the warehouseman's Hen. Sec. 1684m-,^0. Subject to the provisions of section 1684m-31, a ware- houseman's lien may be enforced. (1) Against all goods, whenever deposited, belonging to the person who is liable as debtor for the claims in regard to which the lien is asserted, and 926 WISCONSIN LAWS. (.2) Against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims in regard to which the lien is asserted, if such person had been so entrusted with the possession of the goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have been valid. Sec. 1684m-31. A warehouseman loses his lien upon goods (1) By surrendering possession thereof, or (2) By refusing to deliver the goods when a demand is made with which he is bound to comply under the provisions of this act. Sec. 1684m-32. If a negotiable receipt is issued for goods, the ware- houseman shall have no lien thereon, except for charges for storage of those goods subsequent to the date of the receipt, unless the receipt expressly enumerates other charges for which a lien is claimed. In such case there shall be a lien for the charges enumerated so far as they are within the terms of section 1684m-28, although the amount of the charges so enumerated is not stated in the receipt. Sec. 1684m-33. A warehouseman having a lien valid against the person demanding the goods may refuse to deliver the goods to him until the hen is satisfied. Sec. 1684m34. Whether a warehouseman has or has not a lien upon the goods, he is entitled to all remedies allowed by law to a creditor against his debtor, for the collection from the depositor of all charges and advances which the depositor has expressly or impliedly contracted with the warehouseman to pay. Sec. 1684m3S. 1. A warehouseman's lien for a claim which has become due may be satisfied as follows : The warehouseman shall give a written notice to the person on whose account the goods are held, and to any other person known by the ware- houseman to claim an interest in the goods. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business or abode of the person to be notified. The notice shall contain (1) An itemized statement of the warehouseman's claim, showing the sum due at the time of the notice and the date or dates when it became due. (2) A brief description of the goods against which the lien exists. (3) A demand that the amount of the claim as stated in the notice, and of such further claim as shall accrue, shall be paid on or before a day mentioned, not less than ten days from the delivery of the notice if it is personally delivered, or from the time when the notice should reach its destination, accordmg to the due course of post, if the notice is sent by mail, and (4) A statement that unless the claim is paid within the time specified the goods will be advertised for sale and sold by auction at a specified time and place. 2. In accordance with the terms of a notice so given, a sale of the goods by auction may be had to satisfy any valid claim of the ware- houseman for vvhich he has a Hen on the goods. The sale shall be had in the place where the lien was acquired, or, if such place is manifestly unsuitable for the purpose, at the nearest suitable place. 3. After the time for the payment of the claim specified in the notice to the depositor has elapsed, an advertisement of the sale, describing the goods to be sold, and stating the name of the owner or person on whose account the goods are held, and the time and place of the sale, shall be published once a week for two consecutive weeks in a newspaper published in the place where such sale is to be held. The sale shall not WISCONSIN LAWS. 927 be held less than fifteen days from the time of the first publication. If there is no newspaper published in such place, the advertisement shall be posted at least ten days before such sale in not less than six con- spicuous places therein. 4. From the proceeds of such sale the warehouseman shall satisfy his lien, including the reasonable charges of notice, advertisement, and sale. The balance, if any, of such proceeds shall be held by the ware- houseman, and delivered on demand to the person to whom he would have been bound to deliver or justified in delivering the goods. 5. At any time before the goods are so sold any person claiming a right of property or possession therein may pay the warehouseman the amount necessary to satisfy his lien and to pay the reasonable expenses and liabilities incurred in serving notices and advertising and preparing for the sale up to the time of such payment. The warehouseman shall deliver the goods to the person making such payment if he is a person entitled, under the provisions of this act, to the possession of the goods on payment of charges thereon. Otherwise the warehouseman shall retain possession of the goods according to the terms of the original contract of deposit. Sec. 1684m-36. 1. If goods are of a perishable nature, or by keeping will deteriorate greatly in value, or by their odor, leakage, inflammability, or explosive nature, will be liable to injure other property, the ware- houseman may give such notice to the owner, or to the person in whose name the goods are stored, as is reasonable and possible under the circumstances, to satisfy the lien upon such goods, and to remove them from the warehouse, and in the event of the failure of such person to satisfy the lien and to remove the goods within the time so specified, the warehouseman may sell the goods at public or private sale without advertismg. 2. If the warehouseman, after a reasonable effort, is unable to sell such goods, he may dispose of them in any lawful manner, and shall incur no liability by reason thereof. 3. The proceeds of any sale made under the terms of this section shall be disposed of in the same way as the proceeds of sales made under the terms of the preceding section. Sec. 1684m-37. The remedy for enforcing a lien herein provided does not preclude any other remedies allowed by law for the enforcement of a lien against personal property, nor bar the right to recover so much of the warehouseman's claim as shall not be paid by the proceeds of the sale of the property. Sec. 1684m-38. After goods have been lawfully sold to satisfy a ware- houseman's lien, or have been lawfully sold or disposed of because of their perishable or hazardous nature, the warehouseman shall not thereafter be liable for failure to deliver the goods to the depositor, or owner of the goods, or to a holder of the receipt given for the goods when they were deposited, even if such receipt be negotiable. Sec. 1684m-39. 1. A negotiable receipt may be negotiated by delivery (1) Where, by the terms of the receipt, the warehouseman under- takes to deliver the goods to the bearer, or (2) V/here, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of a specified person, and such person or a subsequent indorsee of the receipt has indorsed it in blank or to bearer. 2. Where, by the terms of a negotiable receipt, goods are deliverable to bearer, or where a negotiable receipt has been indorsed in blank or to bearer, any holder may indorse the same to himself or to any other specified person, and in such case the receipt shall thereafter be negotiated only by the indorsement of such indorsee. 928 WISCONSIN LAWS. Sec. 1684m-40. A negotiable receipt may be negotiated by the indorse- ment of the person to whose order the goods are, by the terms of the receipt, dehvorable. Such indorsement may be in blank, to bearer, or to a specified person. If indorsed to a specified person, it may be again negotiated by the indorsement of such person in blank, to bearer, or to another specified person. Subsequent negotiation may be made in like manner. Sec. 1684m-41. 1. A receipt which is not in such form that it can be negotiated by delivery may be transferred by the holder by delivery to a purchaser or donee. 2. A non-negotiable receipt cannot be negotiated, and the indorsement of such a receipt gives the transferee no additional right. Sec. 1684m-42. A negotiable receipt may be negotiated (1) By the owner thereof, or (2) By any person to whom the possession or custody of the receipt has been entrusted by the owner, if, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of the person to whom the possession or custody of the receipt has been entrusted, or if at the time of such entrusting the receipt is in such form that it may be negotiated by delivery. Sec. 1684m-43. A person to whom a negotiable receipt has been duly negotiated acquires thereby (1) Such title to the goods as the person negotiating the receipt to him had, or had ability to convey to a purchaser in good faith for value, and also such title to the goods as the depositor or person to whose order the goods were to be delivered by the terms of the receipt had, or had ability to convey to a purchaser in good faith for value, and (2) The direct obligation of the warehouseman to hold possession of the goods for him accorling to the terms of the receipt as fully as if the warehouseman had contracted directly with him. Sec. 1684m-44 1. A person to whom a receipt has been transferred but not negotiated, acquires thereby, as against the transferrer, the title to the goods, subject to the terms of any agreement with the transferrer. 2. If the receipt is non-negotiable such person also acquires the right to notify the warehouseman of the transfer to him of such receipt, and thereby to acquire the direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt. 3. Prior to the notification of the warehouseman by the transferrer or transferee of a non-negotiable receipt, the title of the transferee to the goods and the right to acquire the obligation of the warehouseman may be defeated by the levy of an attachment or execution upon the goods by a creditor of the transferrer, or by a notification to the ware- houseman by the transferrer or a subsequent purchaser from the trans- ferrer of a subsequent sale of the goods by the transferrer. Sec. 1684m-45. Where a negotiable receipt is transferred for value by delivery, and the indorsement of the transferrer is essention for nego- tiation, the transferee acquires a right against the transferrer to compel him to indorse the receipt, unless a contrary intention appears. The negotiation shall take effect as of the time when the indorsement is actually made. Sec. 1684m46. A person who for value negotiates or transfers a receipt by indorsement or delivery, including one who assigns for value a claim secured by a receipt, unless a contrary intention appears, warrants (1) That the receipt is genuine. (2) That he has a legal right to negotiate or transfer it. (3) That he has knowledge of no fact which would impair the validity or worth of the receipt, and WISCONSIN LAWS. 929 (4) That he has a right to transfer the title to the goods, and that the goods are merchantable or fit for a particular purpose whenever such warranties would have been implied, if the contract of the parties had been to transfer without a receipt the goods represented thereby. Sec. 1684m-47. The indorsement of a receipt shall not make the indorser liable for any failure on the part of the warehouseman or previous indorsers of the receipt to fulfill their respective obligations. Sec. 1684m-48. A mortgagee, pledgee, or holder for security of a receipt, who in good faith demands or receives payment of the debt for which such receipt is security, whether from a party to a draft drawn for such debt or from any other person, shall not by so doing be deemed to represent or to warrant the genuineness of such receipt or the quantity or quality of the goods therein described. Sec. 1684m-49. The validity of the negotiation of a receipt is not impaired by the fact that such negotiation was a breach of duty on the part of the person making the negotiation, or by the fact that the owner of the receipt was induced by fraud, mistake, or duress to entrust the possession or custody of the receipt to such person, if the person to whom the receipt was negotiated, or a person to whom the receipt was subsequently negotiated, paid value therefor, without notice of the breach of duty, or fraud, mistake, or duress. Sec. 1684m-50. Where a person having sold, mortgaged, or pledged goods which are in a warehouse and for which a negotiable receipt has been issued, or having sold, mortgaged, or pledged the negotiable receipt, the subsequent negotiation thereof by that person under any sale, or other disposition thereof to any person receiving the same in good faith, for value and without notice of the previous sale, mortgage, or pledge, shall have the same effect as if the first purchaser of the goods or receipt had expressly authorized the subsequent negotiation. Sec. 1684m-51. Where a negotiable receipt has been issued for goods, no seller's lien or right of stoppage in transit shall defeat the rights of any purchaser for value in good faith to whom such receipt has been negotiated, whether such negotiation be prior or subsequent to the noti- fication to the warehouseman who issued such receipt of the seller's claim to a lien or right of stoppage in transitu. Nor shall the warehouseman be obliged to deliver or justified in delivering the goods to an unpaid seller unless the receipt is first surrendered for cancellation. Sec. 1684m-52. A warehouseman, or any officer, agent, or servant of a warehouseman, who issues or aids in issuing a receipt, knowing that the goods for which such receipt is issued have not been actually received by such warehouseman, or are not under his actual control at the time of issuing such receipt, shall, upon conviction thereof, be punished by imprisonment in the state prison for not more than five years nor less than one year, or by a fine not exceeding five thousand dollars, or by both. Sec. 1684m-53. A warehouseman, or any officer, agent, or servant of a warehouseman, who fraudulently issues or aids in fraudulently issuing a receipt for goods, knowing that it contains any false statement, shall, upon conviction thereof, be punished by imprisonment in the state prison for not more than five years nor less than one year, or by a fine not exceeding five thousand dollars, or by both. Sec. 1684m54. A warehouseman, or any officer, agent, or servant of a warehouseman, who issues or aids in issuing a duplicate or additional negotiable receipt for goods, knowing that a former negotiable receipt for the same goods or any part of them is outstanding and uncancelled, without plainly placing upon the face thereof the word "duplicate," ;xcept in the case of a lost or destroyed receipt, after proceedings as 59 930 WISCONSIN LAWS. provided for in section 1684m-15, shall, upon conviction thereof, be punished by imprisonment in the state prison for not more than five years nor less than one year, or by a line not exceeding five thousand dollars, or by both. Sec. 1684m-55. Where there are deposited with or held by a ware- houseman goods of which he is owner, either solely or jointly or in common with others, such warehouseman, or any of his officers, agents, or servants who, knowing this ownership, issues or aids in issuing a negotiable receipt for such goods which does not state such ownership, shall, upon conviction thereof, be punished by imprisonment in the state prison for not more tlian five years nor less than one year, or by a fine not exceeding five thousand dollars, or by both. Sec. 1684m-56. A warehouseman, or any officer, agent, or servant of a warehouseman who delivers goods out of the possession of such warehouseman, knowing that a negotiable receipt, the negotiation of which would transfer the right to the possession of such goods, is outstanding and uncancelled, without obtaining the possession of such receipt at or before the time of such delivery, shall, except in the cases provided for in sections 1684m-15 and 1684m-37, upon conviction thereof, be punished by imprisonment in the state prison for not more than five years nor less than one year, or by a fine not exceeding one thousand dollars, or by both. Sec. 1684m-S7. Any person who deposits goods to which he had not title, or upon which there is a lien or mortgage, and who takes for such goods a negotiable receipt which he afterwards negotiates for value with intent to deceive and without disclosing his want of title or the existence of the lien or mortgage, shall, upon conviction thereof, be punished by imprisonment ip the state prison for not more than one year, or by a fine not exceeding one thousand dollars, or by both. Sec. 1684m-58. A warehouseman, or any officer, agent, or servant of a warehouseman, who shall sell, incumber, ship, transfer, or in any manner remove beyong the immediate control of the warehouseman any property deposited with such warehouseman upon such receipt, without the consent of the holder of such receipt, shall, upon conviction thereof, be punished by imprisonment in the state prison for not more than five years nor less than one year, or by a fine not exceeding five thousand dollars, or by both. Sec. 1684m-59. Any person who shall wilfully alter or destroy any receipt or register of receipts or any warehouseman, or any officer, agent or servant of a warehouseman, who shall issue any receipt without entering the same as required by section 1684m-3, shall upon conviction thereof, be punished by imprisonment in the state prison for not more than five years nor less than one year, or by a fine not exceeding five thousand dollars, or by both. Sec. 1684m-60. In any case not provided for in this act, the rules of law and equity, including the law merchant, and in particular the rules relating to the law of principal and agent and to the effect of fraud, . misrepresentation, duress or coercion, mistake, bankruptcy, or other invalidating cause, shall govern. Sec. 1684m-61. This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it. Sec. 1684m-62. 1. In this act, unless the context or subject matter otherwise requires, (1) "Action" includes counter-claim, set-oflf, and suit in equity. (2) "Delivery" means voluntary transfer of possession from one person to another. WISCONSIN LAWS. 931 (3) "Fungible goods" means goods of which any' unit is, from its nature or by mercantile custom, treated as the equivalent of any other unit. (4) "Goods" means chattels or merchandise in storage, or which has been, or is about to be stored. (5) "Holder" of a receipt means a person who has both actual pos- session of such receipt and a right of property therein. (6) "Order"' means an order by indorsement on the receipt. (7) "Owner" does not include mortgagee or pledgee. (8) "Person" includes a corporation or partnership, or two or more persons having a joint or common interest. (9) To "purchase" includes to take as mortgagee or as pledgee. (10) "Purchaser" includes mortgagee and pledgee. (11) "Receipt"' means a warehouse receipt. (12) "Value" is any consideration sufficient to support a simple con- tract. An antecedent or pre-existing obligation, whether for money or not, constitutes value where a receipt is taken either in satisfaction thereof or as security therefor. (13) "Warehouseman" means a person lawfully engaged in the busi- ness of storing goods for profit, provided that this act shall not apply to common carriers who store merchandise or other property received by them as such common carriers. 2. A thing is done "in good faith" within the meaning of this act when it is in fact done honestly, whether it be done negligently or not. Sec. 1684m-63. The provisions of this act do not apply to receipts made and delivered prior to the taking effect of this act. Sec. 1684m-64. All acts or parts of acts inconsistent with this act are hereby repealed. Sec. 1684m-65. This act shall take eflfect on the first day of September, one thousand nine hundred and nine. Sec. 1684m-66. This act may be cited as the warehouse receipts act. Approved June 3, 1909. Duty of consignee or bailee: — Whenever any personal prop- erty shall be consigned to or deposited with any common carrier, forwarding merchant, wharfinger, or warehouseman, innkeeper or the keeper of any depot for the storage of baggage, mer- chandise or other personal property, such consignee or bailee shall immediately cause to be entered 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 directions received by such consignee or bailee at or before his reception thereof he shall immediately notify the owner by mail thereof, if his name and residence be known or can with reasonable diligence be ascertained. Wisconsin Statutes. 1011, sec. 1637. Disposition of proceeds: — If the 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, 932 WISCONSIN LAWS. furnish satisfactory evidence to the treasurer of the ownership of such property, he or they shall he entitled to receive from such treasurer the amount so deposited with him. If not claimed within said time In' the owner or his legal representatives the same shall belong: to the countv. Id. sec. 1645. Officers' fees: — The fees allowed to any justice of the peace under this chapter shall be one dollar for each day's service, and to any constable the same fees as are allowed by law for sales upon execution, and ten cents per folio for making an inventory of property. Id. sec. 1646. Perishable property, held for carriage or storage, how dis- posed of: — If any property delivered to any common carrier, forwarding merchant, wharfinger, or warehouseman, for carriage or storage, shall be in a state of decay, or manifestly liable to immediate damage and decay, the person in whose custody the same shall then be, his agent or attorney, may make an affidavit of such fact, and present the same to a circuit judge, county judge, court commissioner, or justice of the peace of the county in which such property shall then l)e, and such circuit judge, county judge, court commissioner, or justice of the peace, shall thereupon immediately make an order requiring the sherifif or any constable of such county to immediately inspect such prop- erty, and directing him. if the same shall be found by him to be in a state of decay, or manifestly liable to immediate damage or decay, to summarily sell the same without notice. If such sheriff or constable shall upon inspection, find such property to be in a state of decay, or manifestly liable to immediate damage or decay, he shall attach to such order his affidavit stating such fact, and shall make an inventory of said property, and shall thereupon summarily sell said property without notice, and shall make full return of his execution of said order to the judge or justice who issued the same, together with his affidavit, inventory, and the proceeds of said sale, after deducting his fees there- from. From the proceeds of such sale the judge or justice shall pay all legal charges that have been incurred in relation to such porperty, or a ratable proportion of each charge if the proceeds of such sale shall not be sufficient to pay all the charges ; and the balance, if any there be, he shall immediately pay over to the treasurer of his county, with a copy of all the proceedings in said matter. The county treasurer shall file such copy in his WISCONSIN LAWS. 933 ofifice. The persen in whose custody such property shall be when any such proceeding for the sale thereof shall be commenced, shall immediately notify the consignor and consignee of such sale, which notice shall be in writing, and shall be served by leaving a copy thereof with the consignor and consignee, person- ally or by mail. Id. Sec. 1646-1. Perishable property, held otherwise, how disposed of: — Tf any such property shall be perishable or subject to decay by keeping, the person in whose custody such property shall then be. his aeent or attornev, mav make an affidavit of such fact and present the same to a circuit judge, county judge, court commis- sioner, or justice of the peace of the county in which such prop- erty shall then be, and such circuit judge, county judge, court commissioner, or justice of the peace, shall thereupon immediately make an order requiring the sheriff or any constable of such county to immediately inspect such property, and if the same shall be found by him to be perishable or subject to decay by keeping, to make and return an affidavit of such fact. Upon the return of such affidavit, the judge or justice making such order shall immediately make an order requiring such sheriff or con- stable to sell such property at public auction, first giving ten davs' public notice of the time and place of such sale by one publication in a newspaper published in the county, and serving upon the consignor, the consignee, and the custodian, of such property, if they shall be known, a copy of said notice by mail. Such sheriff or constable shall, at the time and place fixed by said notice, unless said property has been otherwise lawfully disposed of, sell said property at public auction, and shall make full return of his execution of said order, and return the same with an inventory of said property and the proceeds of said sale, after deducting his fees, to the judge or justice making such order. From the proceeds of such sale, said judge or justice shall pay all legal charges that have been incurred in relation to such property, or a ratable proportion of each charge, if llir proceeds of such sale shall not be sufficient to pay all the charges ; and the balance, if any there be, he sliall immediately pay over to the treasurer of his county^ with a copy of all the proceedings in said matter. The county treasurer shall file such copy in his office. The person in whose custody such property shall be wlu-n any such proceedings for the sale thereof shall be commenced. 934 WISCONSIN LAWS. shall inimediateh imiifx the consignor and consis^nee of such sale, which notice shall he in writing', and shall he served hy leaving a copy thereof with the consigner and consignee personally or hy mail. Id. '>qc. 1646-2. Uiiclaiiiicii property, hoxv disposed of: — When any such property shall not be perishable or subject to decay and shall not be claimed and taken away within one year after it shall have been so received, the same may be sold as follows : The person in whose custody such property shall then be, his agent or attorney, may make an affidavit of the facts and present the same to a circuit judge, county judge, court commissioner, or justice of the peace of the county in which such property shall then be. and such circuit judge, county judge, court commissioner, or justice of the peace, shall thereupon immediately make an order requiring the sheriff or any constable of such county to sell such property at public auction, first giving sixty days' notice of the time and place of such sale to the consignor, the consignee, and the custodian of such property. Such notice shall be in writing and shall be served personally or by mail upon such of such persons the names and residences of whom are known. If the name or residence of any of such persons is unknown and cannot with reasonable diligence be ascertained, such sheriff or con- stable shall make an affidavit of such fact, and shall thereupon cause such notice to be published in a newspaper of the county at least once in each week for six successive weeks before such sale. At the time and place of such sale such sheriff or consta- ble shall sell said property at public auction and shall make a full return of this proceedings under said order to the judge or justice making the same, together with proof of service or publication of the notice of the sale, and an inventory of the property sold and the proceeds of such sale after deducting his fees. From the proceeds of such sale the judge or justice shall pay all legal charges that have been incurred in relation to such property, in- cluding the charges of the person in whose custody said property was when said proceedings were begun, or a ratable proportion of each charge if the proceeds of such sale shall not be sufficient to pay all the charges; and the balance, if any there be, he shall immediately pay over to the treasurer of his county, with a copy of all proceedings in said matter. The county treasurer shall file such copy in his ofifice. The person in whose custody such WISCONSIN LAWS. ^^^ property shall be when any such proceeding for the sale thereof shall be commenced, shall immediately notify the consignor and consignee of such sale, which notice shall be in writing, and shall be served by leaving a copy thereof with the consignor and consignee, personally or by mail. Id. Sec. 1646-3. 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, custom-house permit, warehouse receipt or other evidence of the title to personal property, or with the possession of personal property for the purpose of sale or as security for any advances made or liability by him incurred in reference to such property, shall have a lien upon such personal property for all such advances, liability 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. Id. Sec. 3346. How such liens enforced: — Every person having a lien giv- en by either of the four last sections or existing in favor of any bailee for hire, carrier, warehouseman or pawnee or otherwise, 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 property 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 lea\ ing the same at his place of abode, if a resident of this state, and if not. by ])ublication thereof once in each week, for three weeks successively, next before the time of sale in some newspaper published in the county in which such lien accrues, 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 the same by action in any court having jurisdiction. Id. sec. 3347. Embezzlement— Amendment to act against:— Any officer, agent, clerk, employe or servant of this state, or of any county, town, school district, city, village or other municipal corporation 936 WISCONSIN LAWS. therein, or of any hnnkinq^. railroad, insiu"incc or telegraph com- pany or other corporation, or of any joint stock company or as- sociation, or in the service or employment thereof, who, by virtue of such office or einplo\incnt, shall have the iwssession or custody of. or who shall be entrusted with, the safekeeping, the disburse- nuMil. inxestment or payment of any money or fund, or with the safekeeping, sale, carrying or delivering of any goods, wares, merchandise, produce, lumber or any other property or thing which is the subject of larceny, 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 factor, carrier, warehouseman, storage, forwarding or commission merchant, or any bailee, executor, administrator, guardian, or any trustee, agent, clerk, attorney, messenger, employe or servant of any private person, corporation, copartnership or association, ex- cept apprentices and other persons under the age of sixteen years, who, by virtue of his business or employment, shall have the care, custody, or possession of or shall be entrusted with the safekeep- ing, disbursement, investment or payment of any money, or shall have the care, custody or possession of, or shall be entrusted with the safekeeping, 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 embezzle or fraudu- lently convert to his own use, or to the use of any other person except the owmer thereof, or shall take, carry 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, produce, lumber or any other property or thing, shall be punished, if the money or property so embezzled shall exceed the value of * * * twenty-five thousand dol- lars, by imprisonment in the state prison not more than * * * Twenty-five years nor less than * * * ten years, and if the money or property so embezzled shall not exceed the value of * * * twenty-five thousand dollars and shall exceed the value of * * * ten thousand dollars, by imprisonment in the state prison * * * not more than * * * twenty years nor less than * * * five years, or if the money or property so em- bezzled shall not exceel the value of * * * ten thousand dollars and shall exceed the value of one thousand dollars, by im- WISCONSIN LAWS. 937 prisonment in the * * * state prison not more than * * * ten years nor less than one year, and if the money or property so embezzled shall exceed the value of one hundred dollars and shall not exceed the value of one thousand dollars, by imprisonment in the state prison not more than five years nor less than one year, and if the money or property so embezzled shall not exceed the value of one hundred dollars and shall exceed the value of twenty dollars, by imprisonment 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 im- prisonment in the county jail not more than six months or by fine 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 copartnership or the other beneficial owners of such property or thing, or who shall take, carry away 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 be punished as provided in this section the same as if he had not been or was not a member of such co- partnership or one of such beneficial owners. The ofifense of embezzlement may be prosecuted and punished in any county of which the person charged had possession of the property or thing alleged to have been embezzled. Id. sec. 4418. Commission created: — There is hereby created a grain and warehouse commission for the state of Wisconsin to consist of three members to be appointed by the governor of the state of Wisconsin, as hereinafter more particularly provided. Wiscon- sin Statutes 1911, Sec. 1747-1.* Personnel : — Such commissioners shall be appointed by the governor (jf Wisconsin, but no person interested in any elevator or warehouse or in the transportation of grain or in the employ of any person or cf)rporation r)\vning or operating any elevator or warehouse or engaged in tlic transportation of grain, or in the employ of any common carrier shall be appointed to member- •Note: — This Act was held void in so far as it pertains to interstate coniiiicrcc. Globe Elevator Co. v. Andrew, 144 Fed. 871, sec also 156 Fed. 664. 938 WISCONSIN LAWS. ship on such commission. Before makincj such appointment, the governor shall recpiest the governor of the state of North Dakota, the governor of the state of New York and the board of trade of the city of Superior to respectively recommend a person or persons for ajijiointnient u])on such commission which said rec- ommendations shall he taken into consideration by the governor in appointing such commissioners, l)ut he shall not be confined to the persons so recommended in apjjointing such commissioners. hi. Sec. 1747-2. Grain and warehouse commission — Appointment — Terms — Vacancy — Removal: — The commissioners heretofore appoint- ed under sections 1747-1 to 1747-5,^ inclusive, shall hold their ofifices until the first Monday in February, 1910, and until their successors are appointed and ciualified. Ou or before the first Monday in February, 1910, the governor shall a])point three commissioners ; the term of one such appointee shall terminate on the tirst Monday in February, 1911 ; the term of the second such ap]3ointee shall terminate on the first Monday in February, 1912; and the term of the third such appointee shall terminate on the first Monday in February, 1913. In January, 1911, and annually thereafter there shall be appointed in the same manner one commissioner for the term of three years from the first Mon- day in Fcburuary of such year. Each commissioner so appointed shall hold his office until his successor is appointed and qualified. And in case of any vacancy in such commission, the governor shall fill the vacancy for the unexpired term so made vacant in the same manner as original appointments are required to be made. And such commissioners shall be subject to removal, for cause, by the governor in the same manner as county officers may be removed. Jd. Sec. 1747-3. Oath of office — Bond: — Each of such commissioners shall, before entering upon the duties of his office, take and file with the secretary of state his oath of office that he will support the constitution of the United States, of the state of Wisconsin and the laws thereof, and faithfully perform the duties of his office to the best of his abality, and shall also execute and file with the state treasurer a bond to the state of Wisconsin in the sum of five thousand dollars, with sufficient surety to be approved by the governor of the state, and conditioned for the faithful perform- ance of the duties of his office, and that he will fully account for WISCONSIN LAWS. 939 any and all moneys which may come into his hands by virtue of his office, and that he will pay over such funds as herein directed. Id. Sec. 1747-4. Duties: — It shall be the duty of the commission created by sections 1747-1 to 1747-55. inclusive, to superintend the inspec- tion, weighing and grading of all grain milled or received for milling, bought or sold in the city of Superior, and of all grain received for storage, stored or shipped from any and all ele- vators and warehouses located in said city which are required to take out license under the provisions of this act. For the purpose of making such inspection, weighing and grading of grain said commission shall have the power, and it shall be their duty to appoint a chief inspector and one or more deputy inspectors, a weighmaster and one or more deputy weighmasters, and to adopt and publish rules and regulations governing the inspec- tion, weighing and grading of grain delivered into or shipped out of any and all such elevators and warehouses in said city. And there is further granted to said commission full power and authority to make such further regulations as will enable them to fully comply with all the provisions of this act, including the granting of licenses to elevators and warehouses hereinafter pro- vided for, and the establishment and collection of charges and fees for the inspection, weighing and grading of the grain. The commission may, upon request, enforce reasonable regula- tions for the weighing of cars of coal offered for shipment in carload lots and may direct any deputy weighmaster to weigh coal in carload lots on the docks within the territory under its jurisdiction, except coal shipped by any person, firm or corpora- tion for its own use or consumptin, and issue weighing certifi- cates therefor, and to inspect and supervise scales therefor. The commission shall fix a fee for any such services, and such fee and all expenses incurred by the commission in complying with such request shall be paid by the person, firm or corporation mak- ing the request therefor. Id. Sec. 1747-5 as amended l)y Chap. 164 Laws Wisconsin 1913. Public warehouses: — All elevators and warehouses located in the city of Sui)erior doing business for a compensation, and all elevators and warehouses located in said city in which the grain of different owners is stored in bulk or mixed together, or stored in such manner that the identity of different lots and par- 940 WISCONSrN LAWS. eels cannot lie accurately preserved, and all elevators and ware- houses located in said city which issue warehouse receipts for gvn'iu received or stored are hereby declared to be public ware- houses. \\'^isconsin Statutes 1911, Sec. 1747-6. Warehouse licenses: — The owner, lessee or manager of any public warehouse in the city of Superior shall be required, before transacting any business, to procure from the grain and ware- house commission a license permitting him to transact business as a public warehouseman under and pursuant to sections 1747-1 to 1747-55, inclusive, which license shall be issued by said grain and warehouse commission upon written application, which shall set forth the location and name of such warehouse, and the indi- vidual name of each person interested as owner or principal in the management of the same, or if such warehouse be owned or managed by a corporation, the name of the president, secretary and treasurer of such corporation shall be stated, and such li- ' cense shall give authority to carry on and conduct the business of a public warehouse pursuant to sections 1747-1 to 1747-55, in- clusive, and shall be revocable by said commission upon summary proceedings upon complaint of any person in writing setting forth the particular violation of the law, and upon satisfactory proof to be taken in such action in such manner and upon such notice as may be directed by the commission. Id. Sec. 1747-7. Bond of licensee: — Before receiving such license, the per- son applying for the same shall file with the commission a bond to the state of Wisconsin in the penal sum of ten thousand dol- lars, with good and sufficient sureties to be approved by the com- mission, conditioned for the faithful performance of his duty as a public warehouseman, and for a full compliance with all the laws of the state relating thereto ; and shall pay to said commis- sion a license fee of two dollars for each license so applied for, provided that where any person or corporation procures a li- cense for more than one warehouse in said city, only one such bond need be given. Id. Sec. 1747-8. Penalty on default of license : — Any person who shall trans- act the business of a public warehouseman within the city of Superior without first procuring the license herein provided, or who shall continue to transact business after such license has been revoked (save only that he may lie permitted to deliver WISCONSIN LAWS. 941 property previously stored in such warehouse) shall on convic- tion be fined a sum not less than one hundred or more than five hundred dollars for each and every day such business is carried on, and the commission may refuse to grant a new license to any person whose license shall have been revoked for a period of one year from the time of such revocation. Id. Sec. 1747-9. How grain stored — Mixing — Inspection fees — Suit for: — It shall be the duty of every public warehouseman to receive for storage any and all grain that is dry and in a suitable condition for warehousing that may be tendered to him in the usual manner in which warehouses are accustomed to receive the same in the ordinary and usual course of business, not making any discrim- ination between the persons desiring to avail themselves of the warehouse facilities. Such grain to be in all cases inspected and graded by a duly authorized inspector appointed under the pro- visions of sections 1747-1 to 1747-55, inclusive, and to be stored with grain of similar grade, but in no case shall grain of diflfer- ent grades be mixed together while in storage, except as here- inafter provided, though 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 must be marked and known as "special bin." If a warehouse receipt be issued for grain so kept in separate bins, it shall state on its face that it is for grain so stored in a special bin, and shall state the number of such bin, and all such special bin grain delivered from such warehouse shall be inspected on its delivery by a duly authorized inspector appointed under sections 1747-1 to 1747-55, inclusive. Nothing in this section shall be con- strued to require the receipt of any kind of grain into any ware- house which has not sufficient room to contain or store it prop- erly. The charges for inspection upon receipt and delivery shall be paid by the warehouseman, and may be added to the charge for storage. The grain and warehouse commission may recover such charges of the warehouseman, and for that purpose and for the purpose of fully carrying out the provisions of sections 1747-1 to 1747-55, inclusive, the said commission may sue and be sued in the name of the "Grain and Warehouse Commission for the State of Wisconsin." Jd. Sec. 1747-10. Warehouse receipts — Numbers: — l'p'»ii application of the owner or consignee of grain stored in pul)lic warehouses as de- 942 WISCONSIN LAWS. lined in this act. accomjianicd w itli evidence that all transporta- ticm and otlier chai\y;es which may he a hen upon such grain, in- chuhng" charges for inspection and weighing thereof, have been paid, and not otherwise, the warehouseman shall issue to the per- son entitled to receive the same a warehouse receipt therfor subject to the order of such owner or consignee, which receipt shall bear even date with the receipt of the grain in store, and shall state upon its face the quantity and grade of the grain as fixed by the inspection provided for in this act, and that the grain mentioned in said receipt has been received into store to be stored with grain of the same grade, and is deliverable upon the return of the receipt properly indorsed by the person to whose order it shall ])e issued and the payment of the proper charges for storage. All warehouse receipts for grain issued by the same warehouse shall be consecutively numbered, and no two re- ceipts bearing the same number shall be issued from the same warehouse during any calendar year, except in case of a lost or destroyed receipt, in which case a new receipt may be issued which shall bear the same date and number as the original re- ceipt, and shall have plainly stamped or marked across its face the word "duplicate." Each such receipt shall state, if the grain is received from cars, the number of each car together with the amount it contained ; if from vessels, the name of such craft, together with the amount it contained ; if from teams or by other means, the amount and manner of its receipt. Id. Sec. 1747-11. Receipts — New receipts: — Upon delivery of grain from store upon any receipt, such receipt shall have plainly stamped or marked across its face the word "canceled," with the name of the person canceling the same, and such receipt shall thereafter be void and shall not again be put in circulation, nor shall grain be delivered twice upon the same receipt. No receipt shall be issued except upon actual delivery of grain into store in the warehouse from which it purports to be issued, and which is to be represented by said receipt ; nor shall any receipt be issued for a greater quantity of grain than is 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 a recipt for a part of the 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 issued thereon is WISCONSIN LAWS. 943 delivered out of store, and the remainder is left in store, a new receipt may be issued for such remainder, but the new receipt shall bear the same date as the original receipt, and shall state on its face that it is for the balance of the grain represented by the original receipt, giving the number thereof, and the original receipt shall thereupon be canceled in the same manner as if the grain represented thereby had all been delivered. In case it is desirable to divide one receipt into two or more receipts, or in case it is desirable to consolidate two or more receipts into one receipt, and the warehouseman consents thereto, the original re- ceipt shall thereupon be canceled in the same manner as if the grain represented thereby had been delivered from store, and the new receipts shall state on their face that they are a part of another receipt, or a consolidation of other receipts, as the case may be, and shall also state the number of the original receipt so canceled as aforesaid, but no consolidation of receipts differ- ing in dates more than ten days shall be permitted. And all such new receipts issued in lieu of old receipts which have been can- celed as herein provided, shall bear the same date as the original rceipts as near as may be. Id. Sec. 1747-12. Liability not limited: — No warehouseman operating or run- ning a public warehouse as defined in sections 1747-1 to 1747-55, inclusive, shall insert in any receipt issued by him any language which shall in any wise limit or modify his liability or responsi- bility as imposed by the provisions of sections 1747-1 to 1747-55. inclusive, or the laws of this state, and no such warehouse re- ceipt shall be issued unless it be issued at the warehouse or at the office of the warehouseman kept in the city of Superior, and shall not be delivered until a record is made of the issuing there- of, containing the date, number, amount, kind and grade of grain, which record shall at all times be kept at the warehouse, or at some other office of said warehouseman in the city of Superior, and shall be open to the inspection of any and all persons having grain stored in such elevator or warehouse, or holding any re- ccii)t ui)on grain stored therein, and any warehouse receipt issued contrary tf) the provisions of this section shall be absolutely null and void. Id. Sec. 1747-13. Redemption of receipts — Defaults: — On the return of any warehouse receipt issued by him prdjuTl}- indorsed, and a tender of all proper charges uiion the grain nprcscntcd by it, such grain 944 WISCONSIN LAWS. shall be delivered to the holder-of such receipt, and it shall not be subject to any further charges for storage after such demand and tender for such delivery shall have been made, and grain represented by such receipt shall be delivered within twenty-four hours after such tender and demand shall have been made, and the cars or vssels to receive the same shall have been furnishd. Such receipt and payment of charges may be tendered and made at the warehouse, or at the office of the warehouseman kept and provided as required by section 1747-13. Any warehouseman who shall make default in delivery of grain as herein provided, shall be liable to the owner of such grain or to the owner of the warehouse receipt issued thereon for any such default in the sum of one cent per bushel, and in addition thereto to one cent per bushel for each and every day of such neglect or refusal to so deliver; provided, that no warehouseman shall be held to be in default in delivery of grain if the grain is delivered in the order demanded and as rapidly as due diligence, care and pru- dence will justify. Id. Sec. 1747-14. Report to commission: — It shall be the duty of every owner, lessee or manager of every public warehouse coming within the provisions of sections 1747-1 to 1747-55. inclusive, to furnish in writing under oath to the grain and warehouse commission, at such times as said commission may require or demand, the state- ment concerning the condition and management of his business as such warehouseman. Id. Sec. 1747-15. Weekly and daily statements: — Every warehouseman within the provisions of this act shall on or before Tuesday morning of each week cause to be made out, and shall keep posted up in a conspicuous place in the business office of his warehouse within the city of Superior, a statement of the amount of each kind and grade of grain in store in the warehouse up to the close of business on the previous Saturday, and shall also on each Tuesday morning render a similar statement to the grain and warehouse commission, which statements shall be made under oath by one one of the principal owners or operators of said warehouse, or by the bookkeeper thereof having personal knowl- edge of the facts. Every warehouseman shall also be required to furnish daily to said commission a correct statement of the amount of each kind and grade of grain received in store in the warehouse on the previous day ; also the amount of each kind and WISCONSIN LAWS. 945 grade of grain delivered or shipped by him during the previous day, and the warehouse receipts that have been canceled upon which the grain has been delivered on such day, giving the num- ber of each such receipt and the amount and kind of grain and the grade thereof received or shipped on each; also how much grain, if any, was so delivered or shipped, and the amount, kind and grade of it, on which warehouse receipts have not been is- sued; when and how such unreceipted grain was received by them; the aggregate amount of such receipted cancellations and delivery of unreceipted grain corresponding in amount, kind and grade with the amount so reported delivered or shipped; every warehouseman shall also at the same time report what receipts, if any, have been canceled and new receipts issued in their stead, as herein provided for, and in making such statements he shall in addition furnish such commission such further information regarding receipts issued or canceled as may be necessary to en- able said commission to keep a full and correct record of all re- ceipts issued and canceled and of all grain received and delivered. Id. Sec. 1747-16. Secretary: — It is hereby made the duty of said commission to appoint one of their members as secretary, who shall keep the records of said commission and receive the reports in accordance with the provisions of sections 1747-1 to 1747-55. inclusive. Id. Sec. 1747-17. Table of rates to be published annually — Maximum rates : — Every warehouseman coming under the provisions of sections 1747-1 to 1747-55, inclusive, shall during the first week in Sep- tember of each year publish in one or more of the daily news- papers in the city of Superior a table or schedule of rates for the storage of grain in his warehouse during the ensuing year, which rate shall not be increased during the year, and such pub- lished rates, or any published reduction thereof, shall apply to all grain received in such warehouse from any person or source, and no discriminations as to rates shall be made, either directly or indirectly, by such warehouseman for the storage of grain. The maximum charge for the storing and handling of grain, including the cost of receiving and delivering, shall be for the first fifteen days, or fraction thereof, one-half cent per bushel, and one-half cent additional for every additional thirty days, or fraction thereof, thereafter. 60 94G WISCONSIN LAWS. Provided that if any warclioiiseman or other person shall deem said charg'es or either of them unreasonalile he may lile with the ^rain and warehouse eommission a eomijlainl in writing, stating the reason t)r ground upon whieh said eharges or either of them are unreasonable, whereupon tlie eommission shall set a time and place for hearing said eom[)laint, \vliich time shall not he later than ten days after the filing of said complaint. Upon said hearing, if the eommission shall he of the opinion that the said charges or either of them are unreasonable it may increase or diminish said charges or either of them, such increased or diminished charge to go into elTtect immediately and remain in effect until increased or diminished upon a like hearing or upon appeal. If the warehouseman or other person making said com- plaint shall feel aggrieved by the decision of the commission he may appeal therefrom to the circuit court of Douglas county in the same manner and with like effect as appeals are now taken from the disallowance of claims by the county board. The com- mission shall have the power to administer oaths, issue sub- poenas, compel the attendance of witnesses and the production of books and papers. In case of failure on the part of any per- son or persons to comply with the order of the commission or any subpoena, or of the refusal of any witness to testify to any matter regarding which he may be lawfully interrogated, it shall be the duty of the circuit court of Douglas county or the judge thereof, on application of the commission, to compel obedience by at- tachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from such court, or a refusal to testify therein. The commission or any warehouse- man or other person making said complaint may cause the depo- sition of witnesses residing within or without the state to be taken in the manner prescribed by law for like deposition in civil actions in circuit courts. Id. Sec. 1747-18. Warehouseman not to tamper with grain — "Special grade" grain — Warehouseman not responsible for damage by fire or heating — Authority of warehouseman respecting grain out of condition: — It shall not be lawful for any public warehouse- man to mix grain of different grades together, nor to select dif- ferent qualities of the same grade for the purpose of storing or delivering the same. Neither shall lie attempt to deliver grain of one grade for another, nor in any way tamper with grain while WISCONSIN LAWS. 947 in his possession or custody with a view of securing profit to himself or any other person. The grain and warehouse com- mission shall have authority under sections 1747-1 to 1747-55. inclusive, in their discretion, to grade any lot of grain "special grade" upon the request of the owner so to do ; and such lot of grain shall only be received into public warehouses within the authority of sections 1747-1 to 1747-55. inclusive, as "special grade" grain, and shall be kept in a bin or bins by itself apart from that of other owners, and said bin or bins shall thereupon be marked and known as "special bins." Any warehouseman may, on the request of the owner of any grain stored in any such special bin, be permitted to mix, dry, clean or otherwise improve the condition or value of any such lot of grain ; provided, that such lot of grain has been inspscted by authority of the grain and warehouse commission as "special ^rade." If a warehouse re- ceipt is issued for any such lot of grain, it shall state on its face that it is issued for "special grade" grain, and .shall also state the number or numbers of the special bin or bins where the same is stored. Upon the application of the owner of any grain known as "special grade." the grain and warehouse commission may re- inspect the same for the purpose of giving it its proper grade. The warehouseman shall, upon the surrender of the original ware- house receipt issued against such "special grade" grain, cancel said receipt and issue in lieu thereof a new receipt which shall state the grade of the grain so re-inspected, and said ware- houseman may then store said grain with other grain of a similar grade. Nothing in this section shall, however, prevent any warehouseman from removing grain while within his warehouse for its preservation or safe keeping. No warehouseman shall be responsible for any loss or damage to grain by fire while in his custody : provided, reasonable care and diligence be exercised to protect and preserve the same, nor shall he be held liable for damage to grain by heating; provided, it can be shown that he exercised proper care in handling and storing the same, and that such heating 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 the city of Superior it .shall be deemed the duty of such warehouseman to dispose of by delivery or ship- ping, in the ordinary and legal manner of so delivering, that grain of any particular grade which was first received by them, 948 WISCONSIN LAWS. or which has been for the lonjjest time in store in his warehouse, and unless public notice has been given by a warehouseman that some portion of the grain stored in his warehouse is out of con- dition, or becoming so. he shall deliver grain of quality equal to that received liy him on all rcccii')ts as presented. In case. ho\vever, that 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 pow^er to preserve the same, he shall immedi- ately give public notice of its actual condition, as near as he can ascertain, by advertisement in a daily newspaper in the city of Superior, and by posting a notice in the most public place (for such purpose) in such city. Such notice shall state the amount, kind and grade of grain, the bins in which the same is stored, the receipt or 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 uncanceled, the grain represented by which has not been previ- ously been receipted for) ; and the name of the party for whom such grain was stored, the date it was received and the amount thereof. The enumeration of receipts and identification of grain so discredited in said notice shall embrace, as near as may be, as great a quantity of grain as is contained in said bins and such grain shall be delivered upon the return and cancellation of the receipts and the unreceipted grain upon request of the owner or person in charge thereof. Nothing herein contained shall be held to relieve the warehouseman from exercising proper care and diligence in preser\ ing any 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. In case the grain be declared to be 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 to sell the same at public auction for the account of said owmer, by giving ten days' public notice by advertisement in a daily newspaper published in the city of Superior. Any warehouseman guilty of any act or neg- lect, the efifect of which is to depreciate grain stored in any ware- house under his control, shall l)c held responsible as at common law upon his bond, and in addition thereto his license shall be WISCONSIN LAWS. 949 I 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 to any person other than the owner of such lot of grain, whether the same be represented by receipts or other- wise. Nor shall any warehouseman be required to receive any more "special grade" grain than he can store conveniently having ref- erence to the capacity of his house and the amount of regular grades stored therein. Id. Sec. 1747-19. Inspection — Test of scales — Penalty: — All persons owning grain, or who may be interested in the same in any public ware- house, and all duly authorized inspectors of such grain, shall at all times, during ordinary business hours, be at full liberty to examine any and all grain stored in any public warehouse in the city of Superior, and all proper facilities shall be extended to such person by the warehouseman, 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 grain stored therein, or of any authorized inspector of such grain. And all scales used for the weighing of grain in public ware- houses 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 persons, agent or agents, whose grain 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 proprietor if the scales are found incorrect, but not otherwise. Any warehouseman who shall 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 herein provided. Id. Sec. 1747-20. Duty of weighmaster: — The weighmaster appointed by the grain and warehouse commission and his deputies, shall sui)er- vise and have exclusive control of the weighing of grain received into any mill or received, stored or delivered or shipped from any and all public warehouses in the city of Superior, and also the inspection of .scales upon which grain is weighed ; and the action or certificates of such weighmaster or his assistants, in tlic dis- charge of their duties, shall be conclusive upon all parties, either 950 WISCONSIN LAWS. in interest or otherwise, as to the matters eontained in said cer- titieates. /c the (hil\' ot' such railroad rdiupaiiics lo prohibit and restrain all unauthorized ])crs()ns. whclluT under the guise of sanijilcrs. sweepers, or under any other pretext whatever from entering or loitering in or about their respective railroad yards or tracks and ivoiu entering any cars of grain under their control or removing grain therefrom, and shall employ and detail such num- ber of watchmen as ma\ be necessary for the |)urpose of carrying out the ])ro\isions of this section. /(/. Sec. 1747-49. Protection of grain after carrier delivery: — It shall be the duty of all warehousemen operating or controlling elevators and warehouses in the city of .Superior and the duty of all i)ersons, firms or corporations, engaged in the manufacture of flour or other grain products within said city to furnish ample and suffi- cient protection to all grain in cars which may be in their pos- session and to properly care for all cars of grain consigned to their res]:)ective elevators, warehouses, mills or manufactories after delivery of the same has been made by the railroad com- panies, and in case of shipment of grain in cars from such ele- vators, \varehouses, mills or manufactories the said persons shall fully protect and care for said cars of grain until delivery of the same has been made to the railroad company. Id. Sec. 1747-50. Seal breaking: — Any person other than the chief inspector or his deputies, or a regular employe of the railroad company or v^^arehouseman, whose duty it shall be to have charge of said grain on cars, 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 of not less than ten dollars nor more than one hundred dollars, or by imprisonment in the county jail not less than ten days nor more than ninety. Id. Sec. 1747-51. No delivery before inspection — Inspection fees: — No rail- way company or common carrier, or any person engaged in the transportation of grain by rail shall deliver to any warehouse or warehouseman required by sections 1747-1 to 1747-55, inclu- sive, to obtain a license, any car or cars of grain to be unloaded into or stored in such warehouse until such warehouseman has taken out and obtained a license under the provisions of sections 1747-1 to 1747-55, inclusive, nor shall any 'such grain be deliv- ered until the same shall be inspected and graded as provided in sections 1747-1 to 1747-55, inclusive, and the inspection charges WISCONSIN LAWS. 959 paid. All of the inspection charges shall be added to the trans- portation charges of the grain, and shall be paid to the railroad company or common carrier by the warehouseman upon delivery of the grain into the warehouse in addition to the payment of the charges for transportation, and in the usual manner. And any railroad, common carrier or other person who shall violate any of the provisions of this section shall be guilty of a misde- meanor and upon a conviction shall be subject to a fine of not less than one hundred dollars, nor more than five hundred dol- lars, and shall also be liable to the grain and warehouse com- mission in damages three times the amount of all inspection charges upon said grain at the maximtim rate hereinbefore pro- vided. Id. Sec. 1747-52. Penalties: — Any person who, or corporation which, shall violate any provision of sections 1747-1 to 1747-55. inclusive, or shall fail to perform each and every duty required by any provi- sion hereof, when punishment of penalty shall not otherwise be specifically provided, shall be deemed guilty of a misdemeanor and be subject to a fine of not less than ten dollars nor more than one hundred dollars, and shall also be liable in damages to any and all persons aggrieved thereby for treble the amount of dam- ages suffered. Id. Sec. \747-53. Flaxseed: — The word "grain" as used in sections 1747-1 to 1747-55, inclusive, shall be construed to include flaxseed, whether flax is particularly mentioned or not. Id. Sec. 1747-54. Salary of commissioners: — The three members of the grain and warehouse commission, provided for in sections 1747-1 to 1747-55, inclusive, shall each give his entire time to the perfor- mance of the duties of his position, and shall not engage in any other active business ; they shall each receive a salary of two hundred dollars per month, out of the funds or fees collected un- der the provisions of sections 1747-1 to 1747-55, inclusive. Id. Sec. 1747-55. Minnesota sales void: — All contracts for the sale or pur- chase of grain upon the basis of grades fixed upon inspection made by any person or persons appointed or employed by or un- der the railroad and warehouse commission of the state of Min- nesota or upon weights fixed or certified by such appointees or employes or by any person in any wise related to or connected 960 WISCONSIN LAWS. with [Uc biianl of iratlo of llio city (»f Duhilli, where the grain is [o 1)0 ilclivcrcil or \vcii;liO(l in Sui)rrior shall be void. Id. Sec. 1747-58. Locus of sale: — In all sales and pnrchases of grain where the same is to he delivered at any elevator, mill, warehouse or other place in the city of Superior, or where the amount of the purchase i)rice is to be determined by weighing the grain in said city, or where such delivery or weighing either is contemplated or afterwards takes place in said city, such grain shall be deemed to have been bought and sold in said city of Superior within the provisions of this act, and all grain so bought or sold shall be in- spected and weighed under the provisions of this act. Id. Sec. 1747-59. Presumption of sale: — All grain delivered from any and all elevators to cars or boats in the city of Superior, shall be pre- sumed to have been delivered upon, or in fulfilment, in whole or in part, of a contract for the sale thereof, and shall subject said grain to weighing and inspection under the provisions of this act at the time of such delivery. But this shall not apply to the use of boats for storage out of the navigation season, provided the grain is afterwards returned to the elevator for inspection and weighing. Id. Sec. 1747-60. Unauthorized weighing — Penalty: — No person who is not the chief weighmaster or a deputy weighmaster under the provi- sions of chapter 19 of the laws of Wisconsin for the year 1905 shall weigh any grain received into any elevator or mill in the city of Superior or shipped out of such elevator or mill, and any person who shall violate any of the provisions of this section shall be punished by a fine of not less than one hundred dollars for each offense; provided, however, that this section shall not prevent the owner of any grain from, or punish him for, weigh- ing his own grain where such weighing does not in any wise relate to the sale, purchase or delivery or payment for said grain, and is solely for his private use, but the burden of proof in any case to show that such weighing is for such private use shall be upon the defendant. Id. Sec. 1747-61. No receipt for grain not graded : — No person or corporation shall issue any warehouse or elevator receipt for any grain re- ceived or stored in any elevator, mill elevator, or mill located in WISCONSIN LAWS. '961 the city of Superior, unless said grain has been inspected and graded under, and pursuant to, said chapter 19 of the laws of 1905, and any receipt otherwise issued shall be void. Id. Sec. 1747-62. No delivery until fees paid: — No railway company shall deliver to any person, firm or corporation, or to any elevator, warehouse, or mill in the city of Superior, any grain inspected by the grain and warehouse commission for the state of Wisconsin, the chief inspector, or any of his deputies or assistants, until the fees for such inspection are paid as provided in section Z?) of said chapter 19, and in case it does so. it shall be liable in damages for three times the amount of the fees so unpaid, to be recov- ered in an action brought I)y and in the name of said grain and warehouse commission for the state of Wisconsin. Id. Sec. 1747-63. Refusal to pay charges by warehouseman — Sales: — In case any person, corporation, elevator company or mill company to whom grain is consigned, or to whom grain shall lie ordered de- livered, shall refuse to pay the inspection charges mentioned in the next preceding section, or shall refuse to receive the grain upon which said charges are declared to be a lien, by reason of the railway company insisting upon payment of such charges, said railway company shall immediately notify the consignor or owner of such grain of such refusal, and collect from him such charges, and in case none of the parties mentioned shall promptly pay said charges, said railway company or common carrier may upon one day's notice, oral, or in writing, or l)y telegram, sell said grain in the open market in tlie city of Superior, and out of the pro- ceeds of said sale ])ay all of the expenses, including said inspec- tion fees, weighing charges and transportation charges, and jjay tile balance over to the person or persons or corporation eiUitled thereto. Id. Sec. 1747-64. Seizure on lien — Sale — Foreclosure: — In addition to the remedies provided in said chapter 19 Tor the collection of inspec- tion and weighing fees, the grain and warehouse commission for the state of Wisconsin may seize and take possession of any and all grain Ujxjn which it has a lien for such charges, and hold pos- session thereof, or sell the same, or it may take a siirficieiU amount of grain from each car to cover .such charges and the ex- (il 962 WISCONSIN LAWS. petiscs of selling the same, and may sell such grain in the open market in the city of Superior after giving not less than ten days' notice of the time and place of sale, either personally or in the niaiiiier prox ided for sales of personal property upon exe- cution in justice court. Said grain and warehouse commission for the state of Wisconsin may also bring an action to foreclose its lien in the usual manner in a court of equity, in which case if the action is brought while the grain is still in the hands of the railway company or common carrier, it shall not be necessary to make any person or cor])oration a party to said action other than the railway company, in which case the railway company shall notify the owner of said grain, who may if he desires, and upon his own application, he made a party defendant in said action, and the said grain and warehouse commission may fore- close its lien upon any and all grain or upon any number of car- loads of grain in the possession of any railroad company in a single action, and this section shall apply to all liens heretofore acquired, and to any and all actions heretofore or hereafter com- menced for the foreclosure thereof. Id. Sec. 1747-6sS. Penalty for sale without inspection — Locus of sale: — No person, firm or corporation shall sell, or ofTer for sale in the city of Superior, any grain until, the same has been inspected under the supervision of the grain and warehouse commission for the state of Wisconsin, by its chief inspector, his deputy or assist- ant, or deliver any grain in said city in pursuance of any contract of sale made elsewhere to any person, corporation, elevator, mill, or from any such elevator to cars or boats, until such inspection shall be made, and any person or corporation violating this sec- tion, or participating in any such sale or delivery, or by receiving such grain, shall be punished by a fine of not less than one hun- dred dollars for each offense, or imprisonment not exceeding ninety days, or by both such fine and imprisonment in the discre- tion of the court. Every sale, ofifer for sale, or delivery of grain within the meaning of this section, shall be deemed to be made within the city of Superior notwithstanding the contract may be made elsewhere if such grain shall, at the time of making the same, be within the city of Superior, or thereafter delivered in said city. In determining whether there is a delivery in the city of Superior, no delivery to a railway company or common car- rier outside of the city of Superior shall be deemed a delivery WISCONSIN LAWS. 963 to the purchaser unless the exact amount of the purchase price has been ascertained and paid. Provided that this section shall not prohibit the making of any executory contract for the de- livery of grain if such contract shall provide for the inspection and weighing of the grain under the supervision of the grain and warehouse commission for the state of Wisconsin. Id. Sec. 1747-66. Sale, storage or delivery, when prohibited: — No person or corporation shall offer for sale or sell or deliver any grain in the city of Superior, or receive or store grain in any elevator or ware- house in said city, or deliver the same from any such elevator or warehouse under or upon any inspection or grading made or fixed by any appointee or employe of the railroad and warehouse com- mission of the state of Minnesota, or upon weights given or certi- fied by any such appointee or employe, or upon any other inspec- tion, grading or weighing, than provided in said chapter 19, and any person violating this section shall be guilty of a misdemean- or and punished as provided in section 53 of said chapter. Id. Sec. 1747-67. Railroad warehouses: — Every elevator or warehouse lo- cated in the city of Superior owned or held by any railway com- pany, either in its own name or in the name of any other person, persons or corporation, for its use, is hereby declared and shall be deemed to be a public warehouse within the meaning of this act so far as to require the railway company owning or hold- ing the same, or any lessee thereof, to receive and store, without discrimination, and subject only to the charges provided in said chapter 19, of all grain carried over the line of such railway company whether by said company directly or h\' any other rail- way company operating its line wliether as lessee or otherwise, and delivered at Superior. Id. Sec. 1747-68. Railroad need not give bond, etc.: — If any such elevator or warehouse shall be operated directly by the railway company owning or holding the same, such company shall not be obliged to give bonds or take out license, but it shall within sixty days make and file with the grain and warehouse commission a written fleclaration stating its purpose to operate said elevator or ware- house pursuant to the laws o^ Wisconsin and the period for which it will so operate the same. (H- in case it has heretofore or shall 964 WISCONSIN LAWS. hereafter lease said warelitutse or e1e\a(or. (lien it shall make and file a like written declaration slatinj;- to whom and for what period said ele\ator or warelionse has heen leased, with a copy of such lease. Id. See. 1747-69. Elevator lessees: In case any person, lirm or corporation has heretofore leased, or shall hereafter lease, or become the lessee or oceni)ant in an\- manner whatsoever of any elevator or warehouse located in the city of Superior belonging to any railway company, said lessee or occupant shall immediately upon the pass- age of this act, or upon the commencement of his leasehold term, if created subsequently to the passage hereof, become a public warehouseman and subject to all of the provisions of chapter 19 except so far that if unable to furnish storage for all persons applying for the same, he shall give preference to the storage of all grain received in Superior over the line of the railroad company owning said elevator or warehouse. Id. Sec. 1747-70. Setting out cars for inspection — Penalty: — Every railway company transporting grain into the city of Superior shall, be- fore delivering the same to the consignee, or any other person or corporation, or setting the same in upon any track leading to any elevator, warehouse or mill, and before delivering the same to any terminal company or any other carrier, set out all such grain upon some one or more of the tracks in its yard con- venient for the chief inspector of the grain and warehouse com- mission for the state of Wisconsin, his deputies and assistants, to inspect the same, and shall set out and separate the cars of grain destined to be delivered in Superior from any passing through in transit, and shall furnish said chief inspector 'a list with initirds and numbers of cars, names of consignor and con- signee, from where shipped, and where and to whom to be de- livered, and shall furnish full and sufficient opportunity for such inspection of any and all grain delivered in Superior before such delivery whether to be delivered upon the original consignment or upon disposition subsequently given, and any railway company which shall violate any or fail to fully comply with all the pro- visions of this section .'^hall forfeit the sum of one hundred dol- lars for each carload of grain, to be recovered in an action brought in the name of the grain and warehouse commission for the state of Wisconsin. Id. Sec. 1747-71. WISCONSIN LAWS. 965 No water or rail shipment until inspection — Penalty: — No person or corporation shall deliver any grain from any elevator or warehouse in the city of Superior to any boat or car until the grain has been inspected, graded and weighed under the super- vision of the grain and warehouse commission of the state of Wisconsin, and the fees for such inspection, grading and weigh- ing paid on demand contemporaneously with such delivery, and any person or corporation violating this section by making such delivery or participating therein or in receiving such grain shall be punished by a fine of not less than one hundred dolllars, nor more than five hundred dollars or by imprisonment not exceed- ing six months, or by both such fine and imprisonment in the dis- cretion of the court. /(/. Sec. 1747-72. Penalty: — Any person who shall resist or interfere with the chief inspector, or any of his deputies or assistants, or the weigh- master, or any of his deputies or assistants, while engaged in the lawful performance of his duty shall be punished by imprison- ment in the county jail not more than six months, or by fine not exceeding two hundred dollars, or by both such fine and imprison- ment in the discretion of the court. Id. Sec. 1747-73. Construction: — A liberal construction shall be given to all of the provisions of this act and of chapter 19 of the laws of 1905 to the end that an honest inspection, grading and weighing of grain between any and all sellers and purchasers thereof in the market at Superior, and of all grain received, stored or de- livered to or by any elevator in said city, and to prevent fraud therein. Id. Sec. 1747-79. Same: — In the passage of this act and of chai)tcr 19, laws of 1905, it is hereby declared to be the intention of the legislature that each section thereof is enacted independent of every other section thereof and not as compensation for or an inducement to the j)assage of any other section. Id. Sec. 1747-(S0. Connection with tracks: The owner of any elevator, ware- house, manufacturing plant or mill, r)r of any lumber, coal or wood yard located within nnc-half mile of any railroad or any sidetrack thereof may, at his own expense, construct a spur track from any such elevator, warehouse, manufacturing plant, mill or yard to a point on the right of way within the terminal or yard limits of any such railroad, and the railroad shall connect 966 WISCONSIN LAWS. the same with its (racks within such terminal or yard limits. Such spur track sliall at all times be under the control and management of. and be kept in repair and operated for sucii owner or his assigns by such railroad, but the actual cost of so maintaining and operating shall be paid monthly by the owner thereof, and in case of neglect to so pay the same upon demand the obligation of this section ujion any such railroad shall cease until such charges are i)aid. And no such spur track hereafter constructed or which has heretofore been constructed under the provisions of this section shall be removed without first having given the parties owning such elevator, warehouse, manufac- turing plant, mill or yard six months' notice, and no removal shall be made except for good cause shown. Id. sec. 1802. Warehouse sites : — Any persons proposing to erect and con- struct a public elevator or public warehouse to be operated for hire, for the purchase, sale, storage or shipping of grain, or other personal property, to be transported upon any railroad, shall be furnished by such railroad, at a reasonable rental a site upon its vacant right of way or depot grounds, within the yard limits of any station or terminal of such railroad; and the railroad commission shall, upon application, if it shall deem the public interest so requires, by order, direct the railroad to furnish such site, and in case of disagreement the commission shall determine the rental therefor. Elevators and warehouses erected under the provisions of this section shall be deemed to be public ele- vators or warehouses and shall be subject to such rules and regulations as to charges and the manner of conducting business as the commission shall prescribe: Provided, That this section shall not apply to cities. Id. sec. 1802a. Standard for grain:— No person shall sell, buy or receive in store any grain at any weight or measure per bushel other than the standard weight or measure per bushel fixed by law ; and for any violation hereof the ofifender shall forfeit not less than five nor more than fifty dollars. Id. Sec. 1670. Grain tester, how used: — No person shall determine the grade of any grain which is bought or received in store at any mill, elevator, warehouse or storehouse by the use of any grain tester that is not sealed in accordance with the United States standard of measure and which sealer is not in accordance therewith at the time it is used. When grain is tested at the WISCONSIN LAWS. ^^^ instance of the seller the tester shall be filled by pouring the grain into it from a scoop or a similar vessel, and when the tester is filled it shall be struck or leveled with three zigzag movements of a straight edge. Any person who shall violate the provisions of this section and thereby cheat or defraud the seller or buyer of any grain shall be punished as is pro- vided in section 4432. Id. Sec. 1670a. False weights and measures: — Any person, who. by him- self or by his servant or agent or as the servant or agent of an- other, shall use or retain in his possession any false weight or measure, or any weight or measure, or weighing or measuring device, to be used in the buying or selling of any commodity or thing which has not been sealed by a sealer of weights and meas- ures within one year; or any person who, by himself or by his servant or agent, or as the servant or agent of another, shall sell or ofifer or expose for sale or keep for the purpose of sale, less than the quantity he represents; or who by himself, or by his servant or agent, or as the servant or agent of another, shall use any false weight or measure in buying or selling any commodity or thing, or shall sell or offer or expose for sale or keep for the purpose of sale any commodity in a manner contrary to law ; or any person, who. by himself or by his servant or agent or as the servant or agent of another, shall sell or offer to sell or have in his possession for the purpose of selling any device or machine to be used or calculated to falsify any weight or measure, shall be punished by imprisonment in the county jail not less than ten days nor more than three months, or by a fine of not less than twenty-five dollars nor more than one hundred dollars. 2. Or any person who wilfully, with intent to cheat or de- fraud the buyer or seller of electric current, gas. water, or steam, shall itiake or cause to be made or aid in the making of any elec- tric conductor, gas i)i])c. water pipe, steam ])ipe. or other instru- ment or contrivance, (jr any connection as to conduct or sui)ply or intended to conduct or supply electric current gas, water, or steam to anv lani]) or motor or machine or burner or orifice or appliance from which such electricity, gas, water, or steam may be consumed or utilizecl. without passing through or ])cing regis- tered by a meter; or any jjcnson who shall wilfully use a false meter for the incaMUTnunt of clc-trir current, gas, water, or steam in the buying or the selling of tiie same; or who sh.'ill wil- 968 WISCONSIN DlsCMSIONS. fully obstruct or interfere with the working of any meter used for such iniriioses. so as to cause or l)e intended to cause a false registration of the amount of electric current, water, gas. or steam consumed with the intent to cheat or defraud the seller or buyer of such electric current, gas. water, or steam, shall be punished bv imprisonment in the county jail not more than one year or by a fine not exceeding ll\e hundred dollars: but in case the amount of damages occasioned by such cheat or fraud shall not exceed twenty dollars, he shall be imnished by imprisonment in the coun- ty jail nut more than three months or by fine not exceeding one hundrd dollars : and in comi)uting the amount of damages oc- casioned, the yalue of such electric current, water, gas, or steam shall be the regular current price therefor, charged to the con- sumer by the seller thereof. , 3. lUit nothing contained in sections 1658 to 1670. inclusive, shall prohibit the use by any person, or by his servant or agent, in good faith, of any unsealed weight or measure or weighing or measuring device purchased or acquired by such person after the last visit of a sealer to such person for the purpose of in- spection and sealing of weights and measures, or any sealed weight or measure or weighing or measuring device in his posses- sion after the expiration of one year next after the last inspec- tion and sealing thereof, provided the said person shall have noti- fied the city sealer in cities subject to the provisions of section 1661, or the superintendent of weights and measures, respectively, in writing, signed by said person, of the fact that he has such weight or measure or weighing or measuring device, giving the number thereof and a general description of the same, and the place where the same may be found for the purpose of inspection, and shall have received a written acknowledgment of said notice, signed by such city sealer or superintendent of weights and Ineas- ures. Id. Sec. 4432. DECISIONS AFFECTING WAREHOUSEMEN A. Bailment — IVIien property belongs to another, bailee may refuse to deliver to his bailor — Express company — Real owner may 'recover prior to delivery to consignee: — Where property was delivered to an express company for carriage and delivery. WISCONSIN DECISIONS. 969 and the consignor was not the true owner thereof, it was held, that while the general principle is true that it is the duty of such a company to deliver property 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 consignor or consignee of the carrier, or aeainst 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 what may be their relatione to each other, unless it is lost, or, for the time being, suspended by his own conduct of surrender or estoppel. So also a w:\-e- houseman receiving goods for the consignee who had actual pos- session of them, to be kept for him, may. nevertheless, refuse to deliver them if they are the property of another and tlie latter prohibits their redelivery. JVclls 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 tlat one who has received property from another as his bailee oi agent must restore or account for the property to him from whom he received it. Neither can the bailee recover the amount which he paid at such sale, it not appearing that the owner of the property authorized such payment. Enos v. Cole, 53 Wis. 235; Nndd V. Montanye, 38 Wis. 511. Same — Executory contract of — Possession: — An executory contract of bailment does not give the bailee named in the contract the right of possession in the property; but such right accrues to the bailee on delivery. Crosby v. German, 4 Wis. 373>. Same — Bailee cannot deny bailor's title: — A bailee is at all times at liberty to show that his l)ailor has parted with his inter- est in the property subsequent to the bailment. But such bailee cannot at law dispute the original title of his bailor. Nudd v. Montanye, 38 Wis. 511. Same — Prima facie case — Burden of proof — Ezndence: — When the bailment is such that the property is in the exclusive possession of the bailee, away from the l)ailor, and is returned 970 WISCONSIN l)i:clSIONS. in a (laiiiagcd comlition, and it is sliown that tiic injury is such as does not ordinarily occur without negligence, the proof of these facts constitutes a 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 a prima facie case under the rule that the burden is on the party 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 negligence, 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 defendant 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. Although 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 estabilsh his defense by hearsay evidence. Hildehrand v. Carroll 106 Wis. 324. Same — Same — Same — Presumption of negligence, when it arises: — Where goods are stored with a common carrier or warehouseman, and there is a failure to deliver upon proper demand, the owner need not show specific acts of negligence to make a prima facie case entitling him to recover. To escape liability, the burden is upon the defendant to show that the failure to deliver did not result through any negligence on its part. Defendant was unable to give any explanation of how the loss occurred. Under such circumstances a presumption of negligence arises, sufficient to entitle plaintiff to recover. Mil- zvaukee Mirror, etc., Works v. Chi., M. & St. P. Ry. Co., 134 N. W. 379, 381. Conversion — Disregard of orders to ship in a certain manner: — In an action against a warehouseman for the conversion of a quantity of flour, it appeared that the flour was stored in the defendant's warehouse and that a properly authorized agent of the plaintiff instructed the defendant to ship the same by rail to a certain point. It further appeared that the defendant dis- regarded this order and shipped the flour by steamer through WISCONSIN DECISIONS. 971 the lakes, and that the flour was lost while in transit. It was held that the disregard by the defendant of the instruction of the plaintiff to ship the flour 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 diligence in the safekeeping of goods intrusted with him. Such care may be said to be that which men of common prudence generally bestow upon their own property similarly situated. Dimmick v. Milwaukee &■ St. P. Ry. 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 property 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 plaintiff. Dimmick V. Mihvaukee & St. P. Ry. Co., 18 Wis. 471 ; Whitney v. Chicago & N. Ry. Co.. 27 Wis. 327; Lemke v. Chicago, M. & St. P. Ry. Co., 39 Wis. 449; Schmidt v. Chicago & N. Ry. Co., 90 Wis. 504. H. Storage charges — Foreclosure for, must be in accordance ivilh statute:— Un\ess a warehouseman proceeds to foreclose his lien for nonpayment of storage charges in the manner prescribed by statute, he is guilty of conversion. Devlin v. Wis. Storage Co., 147 Wis. 518. I. Commingling of zvheat — Subsequent separation — Effect thereof — Replevin: — Plaintiff stored a large quanaity of wheat in ri warehouse with ihc understanding that it might be mingled with other wheat of similar grade. Subsequently 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 identical wheat became the plaintiff's property, and that the subsequent sale thereof by the warehouseman constituted a 97 2 WISCONSIN DF.CTSTONS. conversion and iliai the plaiiUilY oonld recover possession of the wlieal in an action of replevin aj^ainsl llie pnrcliaser. Young V. Miles ct al., 2o Wis. 643. See also same case, 20 Wis. 615. Same — Effect of mixture with yrain of better quality ivithout bailor's co)ise)!t: — It apjieared from the evidence that a ware- houseman had kejit the qrain of a depositor in a separate bin, hut had previousl} niinj^led the same with other grain of a superior qualitv, 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 mix- ture and that he would be entitled to an equal number of bushels thereof. Eastoii v. Hodges, 18 Fed. Rep. 677. M. Pledge — Requisites: — To constitute a valid pledge, there must be a transfer of possession 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 re- spect 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. Colburn, 43 Wis. 71 ; Geilftiss V. Corrigan, 95 W^is. 651. Pledge — Delivery of possessioji essential: — Delivery of pos- session is the very life of a valid pledge. No mere agreement respecting possession can create it. The contract of pledge can not exist outside of the fact of change of possession. The pledgor must dispossess himself openly, completely, unequiv- ocally, and without deceptive combinations which lead third per- sons into error as to the real possessor of the thing. And the pledgee must take and maintain an open, exclusive and un- equivocal possession. Security Warehousing Co. v. Hand, 143 Fed. Rep. 32, 41 ; affirmed in 206 U. S. 415. Same — Same — Facts held not to constitute change of posses- sion: — A warehouse company leased premises of a knitting com- pany and certain employees were in the employ of both com- panies. No signs were displayed jjy the warehouse company, nor did it seek to obtain business from the public. Goods were placed on premises really occupied by knitting company, although in form leased by it to warehousing company, and so-called warehouse receipts issued against such goods and negotiated. WISCONSIN DECISIONS. 9'^^ Substantially the same possession was exercised by the knitting company after the issuance of the receipts as it had exercised before. It was held this was not sufficient to constitute a change of possession. Distinguishing Union Trust Co. v. Wilson, 198 U. S. 530. Security Warehousing Co. v. Hand, 206 U. S. 415, affirming 143 Fed. Rep. 32. Q. Warehouse receipt — M\ist he issued by a zvarehouseman: — In order that a receipt shall be a warehouse receipt in this state it must be issued by one regularly engaged in the business of warehousing. The court will not take judicial notice that one is a warehouseman, but this fact must be proved by the proper evidence. Shepardson 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 o^' pledgee: — A factor was intrusted with the possession of warehouse receipts, the property represented thereby belonging to the plaintiff, and had deposited them with the defendant bank as security 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. The plaintifif brought this action against the bank on the ground that it was a fraud on the part of the factor to pledge the receipts and that no title had passed thereby. It was held, under the Factors' Act of this state, that the factor had authority to pledge receipts in his possession and that ware- house receipts were negotiable under the laws of this state as promissory notes or bills of exchange, giving to the holder, under all ordinary circumstances, imperative presumption of title with power of disposal : that a principal voluntarily sufifering them to be in the hands of a factor, holds out the factor as owner, with unlimited authority to dispose of them; and that such faotor may bind his principal, contrary to his instructions, by pledge of securities 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 notice that the factor holds the title for his principal 974 WISCONSIN DECISIONS. ami sells or pledges in violation of the principal's instruction. Price V. The irisconsm Marine & Fire Ins. Co., 43 Wis. 267. See J'ictor Sezving Machine Co. v. Heller, 44 Wis. 265. Dicta in Hale v. Dock Co., 29 Wis. 482, criticised. Same — Effect of Transfer: — The execution and delivery by a warehouseman of his receipt carries the vendor's title in con- structive possession of the property to the vendee, who, or the party claiming under him, as the holder of the receipt, is thence- forth, in cases free from fraud or bad faith, regarded as the owner of the property for all purposes. The warehouseman 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 Shepqrdson v. Greene. 21 Wis. 546, criticised. Shepardson v. Cary, Exec, 29 Wis. 34; Price v. Wisconsin, Marine and Fire his. 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 receipt for certain barrels of "mess pork," by the terms of which they were to be delivered to bearer; it further appeared that 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 receipt refused to receive the same. It was held, on the above stated facts, that the ware- houseman 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 the goods — it does not transfer the contract. Warehousse 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 72), Laws of 1863, is evidently not WISCONSIN DECISIONS. 975 intended to be interpreted in the same manner as when appli- cable to a bill of exchange. It is intended only to mean the passing of the property in the goods themselves. Hale et al. v. The Milwaukee Dock Co., 29 Wis. 482. But see Price v. Wis- consin Marine & Fire Ins. Co. 43 Wis. 267, in which certain 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 affected by the statute regulating the making and filing of mortgages of personal property. Shepardson v. Cary, Exec, 29 Wis. 34; Rice v. Cutler, 17 Wis. 351. Same — Same — Must be valid "zvareliouse receipts": — In order to validly pledge property represented by a warehouse receipt it must be a receipt issued by a warehouseman and in accordance with the terms of the statute. Where, therefore, one attempted to pledge property represented by "storage warrants," it was held that the pledgee took no title to the property represented threby as against creditors of the pledgor. Geilfuss v. Corrigan, 95 Wis. 651. Same— Pledgee may maintain trover: — Where one holds a warehouse receipt as collateral security, such pledgee may main- tain trover against the warehouseman for the recovery of the wheat or its value, Easton v. Hodges, 18 F'ed. Rep. 677. Same— As collateral:— A bank which received such storage warrants in good faith from a mining company as collateral, but which never had 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 ])ermitte(l 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 com- pany. Id. False ivarehouse receipt — Replevin cannot be maintained Vy 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 de- positors, an action of rci)k'vin brought by the assignee of the 976 WISCONSIN DECISIONS. liciilious rcocipl could m)t he luaintainctl when, under it, one oi those portions was seized, lividence offered lo show that ihe wheat in question was assigned to the defendant was objected to by the plaintiff in the replevin suit, but such objection was properly overruled. The plaintiff had shown no title in himself. So, also, evidence was admissible to show that the receiver of the fictitious 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 cotild be shown that wheat was deposited which had come into their possession. Jackson v. Hale ct al.. 14 llow. 525. WVOMING LAWS. 977 CHAPTER L. WYOMING. LAWS PERTAINING TO WAREHOUSEMEN. Warehousemen not to issue receipts until goods received: — No warehouseman, wharfinger, or other person shah 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, \\woming Compiled Stats. 1910, sec. 6014. Not to issue receipts as security unless invested with owner- ship: — No warehouseman, wharfinger or other person shall issue any receipt or other voucher upon any goods, wares, mer- chandise, 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 commodity shall be at ihc time of issuing such receipt the property of such warehouseman or wharfinger, or other l^erson, and shall be in store and under his control at the time of issuing such recei])t or other voucher as aforesaid. Id. sec. 6015. Not to issue second receipt for same goods : — No warehouse- man, wharfinger or other person shall issue any second receipt for any goods, wares, merchandise, grain or other produce or commodity, while any former receipt for any such goods or chattels as aforesaid, or any part thereof, shall be outstanding and uncancelled. Id. sec. 6016. Not to sell or transfer goods without consent of owner: No warehouseman, wharlingcr or other pcr.scjn shall sell or incumber, ship, transfer or in any manner remove beyond his 62 978 WYOMING LAWS. immediate control any goods, wares, merchandise, grain or other produce or commodity, for which a receipt shall have been given as aforesaid, without the written assent of the person or persons holding such receipt. Id. sec. 6017. Penalty for violating four preceding sections: — Any ware- houseman, wharfinger or other person who shall violate any of the foregoing provisions relating to warehousemen shall be deemed a cheat and be subject to indictment and, upon convic- tion, shall be fined in any sum not more than one thousand dollars and imprisoned in the penitentiary not more than five years, and all and every person aggrieved may have and main- tain 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 sustained by reason of such violation as afore- said, before any court of competent jurisdiction, whether such person shall have been convicted as a cheat under the foregoing sections or not. Id. sec. 6018. Common carriers and warehousemen — Liens: — Every com- mon 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 warehouseman or other 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 personal property for his reasonable charges for the trans- portation, storage or keeping thereof, and for all reasonable and proper advances made thereon by him in accordance with the usage and custom of common carriers and warehousemen. Id. sec. 3756. Appointment of appraisers: — If any such charges for which a lien is given by the preceding sections of this chapter be not paid within thirty days after the same becomes due and payable, the mechanic or other person to which such lien is given may apply to any justice of the peace of the county wherein the property on which the lien is claimed is, to appoint appraisers to appraise such property. Such justice shall thereupon appoint by warrant, under his hand, three disinterested householders of the county to appraise such personal property. Id. sec. 3757. WYOMING LAWS. ^'^^ Oath and duty of appraisers : — The appraisers so appointed shall be sworn by the justice to well and faithfully appraise and value all such personal property, 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 they were appointed, within ten days after their appointment. Id. sec. 3758. Notice of sale — Sale and application of proceeds: — After such appraisement is made, the person to whom such lien is given by the foregoing sections of the chapter, shall give ten days' prior notice of the time, place and terms of sale, together with a description of the property to be sold. Such notice 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 news- paper published in the county wherein the person attempting to enforce his lien resides (or if there be no such newspaper, then by posting in three public places within such county for at least four weeks), and shall transmit by mail to the owner, at his usual place of abode, if known, a copy of such notice, the notice being personally served, or the service being complete after four weeks, the party claiming a lien may proceed to sell all such personal property, or as much thereof as may be necessary to pay his claim, at public auction, for cash in hand, at any public place within such county, named in such notice, between the hours of 10 a. m. and 4 p. m. of the day appointed; and from the proceeds may pay the reasonable 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. 3759. Requisites of sale: — No such sale shall be made for less than two-thirds of the appraised value of the article sold, nor except upon due notice, as required by the preceding section. Every such sale made in violation of the provisions of this section shall be absolutely void. Id. sec. 3760. Lien holder may purchase: — At any such sale, the person to whom such lien is given may become the purchaser. Id. sec. 3761. 980 WYOMING LAWS. Adjournment — Bill of sale: In any case wlicrc the prop- erty to he soUl canntH c(Hucnicntly be sohl in one (hiy, the sale may he continued from (la\ to day. hy puhlic outcry, at the place of sale. Llpon ihe completion of such sales, the person to whom the lien is given herehy shall cause a hill of sale thereof to be lilcd with (lie jnsiice of the peace before whom the appraise- ment was had. in which shall he set down the sum for which each separate article of i)roperty 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. 3762. Right of action preserved: — Nothing" herein contained shall be so construed as to take away the right of action of the party to whom such lien is given for his charges, or for any residue thereof at the sale of such property. Id. sec. 3763. 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. 3764. Fees of appraisers: — Appraisers appointed under the pro- visions 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 record- ing each bill of sale. Clerks and criers at sales made under the provisions hereof shall receive each three dollars per day. Id. sec. 3765. Chattel mortgages subject to liens: — No mortgage on per- sonal property shall be valid as against the rights and interests of any person entitled to a lien under the provisions of this chapter. Id. sec. 3766. Timber liens to be paid pro rata: — All lien claims for labor performed in cutting or manufacturing 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, pro rata. out of the proceeds rising from the sale thereof, if the same shall be sold. Id. sec. 3767. Identification of property not 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 WYOMING DECISIONS. 981 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 pay for such labor is due. and may seize and sell the same as provided in this chapter. Id. sec. 3768. When lien not to affect bona fide purchasers : — No lien upon personal 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 payment made on such lien claim shall apply on payment for such personal property. Id. sec. 3769. DECISIONS AFFECTING WAREHOUSEAIEN B. Warehousemen — Shipping customers' goods "released" — Bind- ing on ozvner. ivhen: — A storage company was employed to pack and ship household goods, no directions being given as to how to ship and nothing being said about freight rates. It shipped the same at a reduced rate and signed an agreement releasing railroad from lial)ility beyond a stated amount. Held, that where the owner of goods directs his agents to ship the same, without further directions or restrictions, the law implies authority in the agent to make a reasonable contract with the carrier, although such contract may limit the carrier's lialiility. If such contract is lawful, the principal is bound thereby. Ore- gon Short Line Ry. Co. v. Blyth. 118 Pac. 649. Rehearing denied. 119 Pac. 875. H. fjcn — Depositor niiist he in laivfnl possession of property: — By virtiK- of sec. 2S46. Revised .^latutcs of 1S09. any ware- houseman or other i)crson is entitled to a lien on property who shall safely keep the same at the request of the owner or of the l)erson lawfully in possession thereof. Where, therefor, it was stipulated between the parties to a suit that the plaintiff was in lawful ])Ossession of the property at the time when deposited 982 WYOMING DECISIONS. with the defeiuianl. it was held (hat the defendant's lien for eharges attaclied under tliis statute. Kl)]ihall Co. v. Payne et ux., 9 Wyo. 441. Same — // e>ttitlcd to storage charges lien attaches — Need not he a "warehouseman" : — In a case where one stored goods for another, which was remanded for a new trial, it was held that if the defendant could show that he was entitled to any charges whatever for his care of the goods, that his lien for charges would attach thereto under sec. 1471 of the i^evised Statutes, 1887, being sec. 2486 of the Revised Statutes of 1899. It is not necessary that the person earning the storage charges be a ware- houseman 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. Beckwith Com- mercial Co., 6 Wyo. 500; Kimball Co. v. Payne et ux., 9 Wyo. 441. ALASKA LAWS. 983 CHAPTER LI. Territorial Possessions. ALASKA. LAWS PERTAINING TO WAREHOUSEMEN. The Uniform ^^'arel^ouse Receipts Act is in force in Alaska. It was approved April 28, 1913. to take effect January 2, 1914. Sess. Laws of Alaska 1913. Chap. 65, page 196. Also this Vol. page 1. Lien of carriers, storers of merchandise, and agisters of cattle: — Any person who is a common carrier, or \vho shall, at the request of the owner or lawful possessor of any personal property, carry, convey, or transport the same from one place to another, and any person who shall safely keep or store any grain, wares, merchandise, and personal property at the request of the owner or lawful possessor thereof, and any person who shall pasture or feed any horses, cattle, hogs, sheep, 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. Carter Code, sec. 277; Charlton Code. sec. 277. Bailey v. Davis (23 Pac. Rep., 881) ; Tobin v. Portland Flouring Mills Co.: Sharp v. Johnson (63 Pac. Rep., 485). (68 Pac. Rep.. 749.) Comjj. Laws Terr, of Alaska, 1913. sec. 706. Poceedings to enforce such liens: — If such just and reason- able charges be not i)aid within three months after the care, at- tention, and labor shall have been performed or bestowed, or the materials or food shall have been furnished, the person hav- ing 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 aiul reasonable charges. Before selling, he i>S4 ALASKA LAWS. shall qivc notice of such sale hy advertisement for three weeks in a newspaper pnhlished in the iirerinct. if there he such i)uhli- eatiiMi. or hy ]>ostin^ np notice of snch sale in three ])uhlic i)laccs in the precinct, one of which shall he the post-office, or adjacent thereto, for three weeks before the time of snch sale, and the proceeds of snch sale sh.all he ap])lied, lirst, tn (he discharq'e of snch lien, and the costs of kee])inif and selling such property, and the remainder, if any, shall he i)aid over to the owner thereof: Provided, Nothiiii^ herein contained shall be construed as to authorize any warehouseman to sell more of any wool, wheat, oats, or other grain than sufficient to pav charges dtie the warehouseman on such wool, wheat, oats, or other grain ; And provided further. If any such warehouseman shall sell, loan, or dispose of in any manner, contrary to the provisions of this chajiter, without the consent of the owner thereof, anv such w(iol, wheat, oats, or other grain, he shall, for each and every offense, forfeit and pay to the owner of snch wool, wheat, oats, or other grain a sum equal to the market value thereof, and fifty per centum of the market value in addition as a penaltv, the market value to be the price such article or articles bore at the time the owner thereof made demand on the warehouseman for the same. Carter Code. sec. 278 ; Charlton Code, sec. 278. Id. sec. 707. Agreements not to be interfered with: — The provisions of the last three sections shall not interfere with any special agree- ment of the parties. Id. sec. 708. Making false receipt or altering receipt of goods in vv^are- house: — That if any person shall willfully or knowingly make or alter any receipt or other written evidence of the delivery into any warehouse, 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 merchan- dise which shall not ha\e l)een so received or delivered previous to the making and uttering of such receipt or other written evidence thereof, such jierson, u])on conviction thereof, shall be punished 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. Carter Code, sec. 83 ; Charlton Code, sec. 83. Id. sec. 1963. ALASKA LAWS. 985 Tax on business and trades — Vol. 30, p. 1336, Amended June 6, 1900, 31 Stat. L., 331: — That any person or persons, corporation, or company prosecuting or attempting to prosecute any of the following lines of business within the District of Alaska shall first apply for and ol^tain license so to do from a district court or a subdivision thereof in said District, and pay for said license for the respective lines of business and trade as follows, to wit : * * * Public docks, wharves, and warehouses, ten cents per ton on freight handled or stored. Id. sec. 2569. Mar. 3, 1899—30 Stat. L., 1335-1341— Penalty for doing business without license — Provisos — Each day to constitute distinct offense — Opportunity to apply for license: — That any person, corporation, or company doing or attempting to do business in violation of the provisions of the foregoing section, or without liaving hrst paid the license therein required, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined, for the first offense, in a sum equal to the license required for the business, trade, or occupation; and for the sec- ond ofifense, a fine equal to doul:)lc the amount of the license re- quired; and for the tliird offense, three times the license re- quired and imprisonment for not less than thirty days nor more than six months : Provided, That each day business is done or attempted to be done in violation of the preceding section sliall constitute a separate and distinct offense; And provided further, That any person, firm or corporation hitherto engaged in any business within the said District of Alaska mentioned in tlie last preceding section, or that may engage in such business at any time prior to the first day of July, anno Domino eighteen hundred and ninety-nine, shall not be deemed to have violated the provisions of this section and the last preceding section if, in the opini(;n of the court or judge thereof, such person, firm, or corporation shall not liavc liad reasonable time and oppor- tunity to api)ly for licen.se as hereinbefore required. Carter Code, sec. 461 ; Charlton Code, sec. 461. Note; There seem to be no decisions in the Alaska reports affecting ware- liousemcn. 986 HAWAII LAWS. HAWAII. LAWS PERTAINING TO WAREHOUSEMEN, Be it Enacted by the T>egislatiire of the Territory of Hawaii: The word "Warehousemen" as used in this Act shall mean and include every person who is or who may be engaged in the business of storing for hire, goods, wares, merchandise, ef- fects, baggage or other portable property. Laws of Hawaii, 1909, Act No. 137. page 177, sec. 1. Approved April 28, 1909. A warehouseman shall have a lien upon any property stored with him until all reasonable charges thereon, are paid. Such lien shall have priority over other liens of any nature and over all attachments. Id. sec. 2. Whenever any goods, wares, merchandise, effects, baggage or other portable property, together with the contents thereof, stored with any warehouseman remains uncalled for and un- claimed for the period of six months from the time such prop- ertv was stored, he may sell the same at public auction and out of the proceeds of such sale may retain the charges due for storage, transfer and other expenses incident thereto, if any there be, together with the costs of advertising and sale. Any bal- ance remaining, which shall not be claimed by the owner of the property sold or his legal representatives within thirty days from the date of such sale, shall be deposited by the warehouse- man with some bank or trust company, doing business under the laws of the Territory of Hawaii, to the credit of the owner and payable at any time to him or his legal representatives. Id. sec. 3. No sale allowed under Section 3 of this Act shall be made until the expiration of four weeks from the first publication or notice of such sale in a newspaper of general circulation throughout the County in which such warehouseman keeps his office and place of business. Said notice shall be published once a week for three successive weeks in such newspaper and shall contain a description of such property, as near as may be, HAWAII LAWS. 987 the name of the owner, if known, the name of the warehouse- man, the time said property was actually stored, the amount of charges due thereon, together with the time and place of such sale. Id. sec. 4. This Act shall take efifect from and after its approval. Id. sec. 5. Note; There seem to be no decisions in the Hawaii reports affecting ware- housemen. 988 PORTO RICO LAWS. PORTO RICO. LAWS PEUTAINING TO WAREHOUSEMEN. Depositum, how constituted: — A depositiim is constituted from the time a person receives a tiling, belonging to another witli the obligation of keeping and returning it. A compilation of the Revised Statutes and Codes of Porto Rico in force on March 9. 1911. sec. 4766. May be consituted judicially or extrajudicially: — A deposi- tum may be con.stitutcd judicially or extrajudicially. Id sec. 4767. Depositum a gratuitous contract: — Depositum is a gratuit- ous contract unless there is an agreement to the contrary. Id. sec. 4768. Object must be personal property: — Personal property only can l)e an oljject of a depositum. /(/. sec. 4769. Extrajudicial; kinds: — An extrajudicial depositum is either necessary or voluntary. Id. sec. 4770. Voluntary deposituni defined — May be made by whom:— A voluntary depositum is that in which delivery is made by the will of the bailor. The depositum may be made by two or more persons who believe themselves to have a right to the thing bailed in the hands of a third person, who shall, in a proper case, deliver said thing to the proper person. Id. sec. 4771. Acceptance of depositum from person incapacitated: — If a person (lualified to contract accepts the depositum made by an- other who is an incapacitated person, the former is subject to all the obligations of a bailee, and may l)e compelled to return it by the guardian, curator, or administrator of the person who made the depositum, or ])y the same person, should he become qualified. Id. sec. 4772. Depositum by qualified to incapacitated person: — If the depositum has been made by a qualified person, in the hands of another who is incapacitated, the bailor shall only have the PORTO RICO LAWS. 989 action to recover the thing bailed as long as it remains in the possession of the bailee, or to compel the latter to pay him the sum by which he may have profited by the thing, or its price. Id. sec. 4773. Obligations of bailee to keep and return things: — A bailee is obliged to keep the thing, and, when required, to return it to the bailor or to his legal representatives, or to the person who may have been designated in the contract. His liability, with regard to the keeping and loss of the thing, shall be governed by the provisions of Title first of this Book. Id. sec. 4774. Permission to use thing bailed required: — The bailee can- not make use of the thing bailed without the express permis- sion of the bailor. Otherwise he shall be liable for losses and damages. Id. sec. 4775. Effect of permission to use thing bailed — Permission must be proven: — When the bailee has permission to make use of the thing bailed, the contract loses the character of a depositum and becomes a loan or a commodatum. The permission shall not be presumed, and its existence must be proven. Id. sec. 4776. Delivery of thing bailed closed and sealed" Determination of value: — When the thing bailed is delivered closed and sealed, the bailee must return it in the same condition, and shall be liable for the losses and damages if the seal or lock should have been broken by his fault. Such bailee is presumed to be to blame unless the contrary is proven. With regard to the value of the thing bailed, the statement of the bailor shall be admitted when the forcible opening can be charged to the bailee, should there be no proof to the con- trary. Id. sec. 4777. How thing bailed to be returned: — The thing bailed shall be returned with all its proceeds and accretions. Should the depositum consist of money, the provisions relat- ing to agents, contained in section 1626. shall be applied to the jjailce. Jd. sec. 477.S. Proof of ownership: — 'Hie bailee cannot demand that the bailor prove that he is the owner of the thing bailed. 990 PORTO RICO LAWS. Nc\ ortlicloss, sliDuKl he discoxer lliat the thiiii^ lias been stolen and who is its true owner, he must inform the latter of the depositum. If the cnvncr, notwithstanding this, does not claim the depos- itum within the term of one month, the bailee shall be free from any liability by returning the thing bailed to the person from whom he received it. Id. sec. 4779. Right of bailors when not joint and thing divisible — When joint or thing not divisible: — If there arc two or more bailors, and they should not be joint and the thing can be divided, each one can demand his part only. When they are joint bailors, or the thing does not admit of division, the provisions of sections 1108 and 1109 of this Code shall govern. Id. sec. 4780. Loss of capacity to contract by bailor: — When the bailor loses his capacity to contract, after having made the depositum, the latter can not be returned except to the persons who have the administration of his property and rights. Id. sec. 4781. Place for return of thing bailed: — A\'hen, on making the depositum, a place was designated for the return of the thing bailed, the bailee must take the thing bailed to such place ; but the expense incurred by the conveyance shall be charged to the bailor. Should no place have been designated for the return, it shall be made at the place where the thing bailed may be, even should it not be the same place where the depositum was made, provid- ed there was no malice on the part of the bailee. Id. sec. 4782. Depositum must be returned to bailor, when: — The depos- itum shall be returned to the bailor when he claims it, even though a specified term or time for such return may have been fixed in the contract. This provision shall not be observed when the depositum in the possession of the bailee has been judicially attached, or should the latter have been notified of the objection of a third person to the return or to the transfer of the thing bailed. Id. sec. 4783. Bailee may return depositum when: — The l)ailee, why may have sufficient reasons for not keeping the depositum, may, even before the term designated, return it to the bailor, and if the PORTO RICO LAWS. 991 latter refuses it, he may obtain its consignation from the judge. Id. sec. 4784. Loss of thing through force majeure and acquisition of another: — The bailee, who may have lost the thing bailed through force majeure and received another in its place, shall be obliged to deliver the latter to the bailor. Id. sec. 4785. ObHgation of heir of bailor selling thing bailed: — The heir of the bailor who, in good faith, may have sold the thing which he did not know was bailed, is only obliged to return the price he may have received or to assign his actions against the pur- chaser in case the price should not have been paid to him. Id. sec. 4786. Obligations of bailor to reimburse bailee for expenses: — A bailor is obliged to reimburse the bailee for the expenses he may have incurred in the preservation of the thing bailed, and to indemnify him for all the injuries he may have suffered by reason of the depositum. Id. sec. 4787. Retention of thing by bailee until full payment: — The bailee may retain the thing bailed until the full payment of what is due him by reason of the depositum. Id. sec. 4788. Bonded warehouses — Penalty: — The Treasurer of Porto Rico shall be, and is hereby, authorized in his discretion, and upon the execution of such bond as he may prescribe, to allow any person to establish a warehouse in any city, to be known as general bonded warehouse, to be used exclusively for the storage of articles taxable under this act or for the manufac- ture of such articles intended exclusively for export. Every such warehouse shall be under the joint custody of the propri- etor thereof and of a duly appointed agent of said Treasurer and shall be kept securely locked and at no time be unlocked except in the presence of said agent. Taxable articles may, previous to the payment of the respective tax, be removed from a fac- tory and lawfully deposited in said warehouse on complying with such regulations and after making such entries and giv- ing such bonds as said Treasurer may prescribe. Any person removing any taxable article on which the tax has not been paid from any factory for the purpose of depositing such article in a bonded warehouse before romplving with all the respective provisions of this section shall be lined not less than one hun- 992 roRTo RTCO decisions. ilred dollars iu)i- iiumx- than \\\v luuulrod dollars, or be impris- oned tor not less than one month nor more than one year. Com- pilation of the Revised Statutes and Codes of Porto Rieo in foree on Mareh 9, 1^11, see. 3047. Removal of articles: Any article deposited in a general bonded warehouse may he removed therefrom upon the pay- ment of the respective tax, payable before the removal thereof, and in the manner prescribed by the Treasurer of Porto Rico. Every person who removes or attempts to remove from a gen- eral bonded warehouse any taxable article on which the tax has not been paid in the manner herein provided shall be fined not less than one hundred dollars nor more than five hundred dollars, or shall l)e imprisoned for not less than one month nor more than one year: Provided, That any article may be re- moved from a general bonded warehouse for export from Porto Rico, w^ithout the payment of the tax, upon making such entries, giving such bond and complying with such other requirements as the Treasurer of Porto Rico may prescribe. Id. sec. 3048. DECISIONS AFFECTING WAREHOUSEMEN A. Depositum (Bailment) — Rights of Depositor — Presumed Illicit Source of money: — When a person receives a sum of money and deposits the same with another, even in the alleged assumption that the source of the money was an illicit transac- tion with a third party, the deposition has good title to said sum of money as to all the world except the party defrauded. In such a case the maxim /;; pari delicto patior est conditio de- fendentis has no application because there was no fraud on de- positors part in depositing the money. Gonzales v. Ortis, 17 P. R. Reps. 563. B. Pleading — Setting forth contract in action in tort — Negligence may be averred in general terms: — In actions against a steamship company for failure to safely carry goods the declaration con- tained two counts, one charging liability as a common carrier and the other that of a warehouseman. The defendant demurred on the ground that there was an attempt to unite in the same PORTO RICO DECISIONS. 993 action both tort and contract and further on the ground that the alleged acts of negligence are not set forth. The demurrers were overruled, the court holding it was proper to set forth the contract in the declaration, the breach of which contract may properly constitute the basis of the action in tort. It was also held that in svich cases negligence need only be charged in gen- eral terms and that the facts constituting the same need not, and should not be detailed. Hilar cr Co. v. .¥. Y. and P. R. Steam- ship Co.; Hennanos v. Same, and Lomha & Co. v. Same, 1 P. R. Fed. Reps. 265. 63 9-^-l pnn.irriNE islands. PHILIPPINE ISLANDS. LAWS PERTAINING TO WAREHOUSEMEN. The Uniform \\'arehouse Receipts Act is in force in the Philippine Ishmds. It was enacted February 5, 1912, to take effect ninety days after its publication in the Official Gazette of the Philippine Islands shall have been completed. Acts of the Second Philippine Legislature 1912, No. 2137, page 83. Note : For provisions in respect of Customs Bonded Ware- houses see Compilation of the Acts of the Philippine Commis- sion, 1908, Chap. 151, page 602; See amendment of May 19, 1909, Public Laws Enacted l)y the Philippine Legislature, Vol. 7, Act No. 1912, page 176. For provisions relating to manu- facturing bonded warehouses see Act, enacted October 12, 1907, Public Laws passed by the Philippine Commission, Vol. 6, Act No. 1782, page 443. For provisions of law relating to bonded warehouses for distilled spirits, etc.. see Compilation of Acts of the Philippine Commission 1908, Title 32, Chap. 180, page 678. DECISIONS AFFECTING WAREHOUSEMEN H. Pa\mcnt of customs duties by warehouseman — Not entitled to refundment of when paid voluntarily and in violation of con- tract: — Plaintiff's agent received a quantity of rice belonging to him and contracted with defendants, warehousemen, to store it in a l)onded warehouse. Defendants stored four-fifths in a bonded warehouse and the remainder in a warehouse not bond- ed, after paying the customs duties thereon. Plaintiff sold a part of the rice which was in the bonded warehouse, and paid the duties on same. Plaintiff then called upon defendants to deliver the balance of the rice. The rice in the bonded ware- house was delivered but the rice in the unbonded warehouse defendants refused to deliver until they had been reimbursed for the duties paid by them thereon. Plaintiff paid this sum to PORTO RICO DECISIONS. 995 defendants under protest and sued for its recovery. It was held tliat had defendants comphed with the contract and stored all the rice in a bonded warehouse, no duties would have attached and the payment would have been avoided. A warehouse^ man is entitled to reimbursement for expenses he incurs in the performance of his contract, but not those he incurs in viola- tion thereof. As the payment of the duties was an expense incurred in violation of the contract defendants were not en- titled to reimbursement therefor. Judgment for plaintiff af- firmed. Essabhoy v. Smith, Bell & Co. 5 P. I. hZ?). INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipts act. ABANDONED GOODS. See also GOODS. page when may be sold for charges, procedure. Ark. 50, Fla. 113, Ore. 7()» ACCEPTANCE, of bill of lading and acting under implies assent to exemptions ' -^ Colo. 9Z of bill of lading does not imply assent to unlawful exemptions in^ Ga. 147 upon,' of draft, the attached warehouse receipt is deliverable,. La. 366 ACCIDENT, warehouseman not liable for goods destroyed by, when, Ind. 248, 2o4 stipulations against liability for loss from W'ill not excuse neg- ligence, .■••,••■ •^^- ^^^ effect of exemption in bill of lading against unavoidable acci- dent, N- Mex. 613 ACT, ' printed copy of to be posted in warehouse, .Ill- 18.3 copy of to be kept posted in grain warehouses, Ky. ill '^^'^^ denned U. W. R. A. 19. Wis. 930 on bond of public warehousemen, ...Ala. 21, Mass. 393 on insurance policy, warehouseman not liable if he loses, when, rights of by owner and bailee where there is a trespass against bailed property, Ga. 125 owner may waive tort and sue bailee in assumpsit on the con- tract Ga. 125 ACT OF GOD, warehousemen not liable for losses resulting from, Ohio. 766 synonymous zvith "inevitable accident," Miss. 510 unprecedented rise in river constitutes, Mo. 555-56 // warchtjuscman has warning of rising waters, he must remove goods, if possible, Mo. 555-56 damage by the elements held to be Calif. 68 fire of an incendiary origin is never, Calif, 78 ACT OP WAR, warehousemen not liable for loss resulting from, .Ga. 136, Tenn. 848 does not constitute trespass, Ga. 136 trover will not lie for goods taken by, Ala. Zi ACTUAL NOTICE. See also NOTICE. what is equivalent to, .Md. 391 998 INDEX. References to laws are printed in roman : those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. ADMISSIONS, PACK by draymen that goods in good condition ■not binding ///. 201 ADVANCES. statement nf, must appear on receipt, Ga. 140, U. W. R. A. 2, Wis. 921 ivarchousonan's lien superior to claim for Ga. 133 sale of stored goods for, when Calif. 58, Colo. 86 lien of warehonseman embraces Mich, 417 must he noted on warehouse receipt in order to precede pledgee's claims, Ky. 335 warehousemen may recover for freight, although goods injured by carriers, when N. Y. 644 charges for by warehousemen whether usury, a question for _ jiiry, _ ." AT. Y. 644 issuance of receipt without notice of, warehouseman protected, N. Y. 669-70 ADVERSE CLAIMANTS, warehousemen mav compel them to interplead, U. W. R. A., 6. Wis. 924 warehousemen have reasonable time to determine validity of claims U. W. R. A. 7, Wis. 924 duty of bailee in case of, Ala. 29 warehouseman has burden of proi'ing delivery to true owner, when Ala. 29 facts stated and held not to hai'e afforded zvarehouseman rea- sonable time to ascertain validity of adverse claim N. Y. 7 judgment against bailee conclusive as to title, Ala. 29 ADVERSE TITLE, no defense, except as expressly provided in act. U. W. R. A. 7, Wis. 924 ADVERTISEMENTS, that warehouse 'fireproof," binding on zvarehousemen, N. Y. 662 Tqx. 865 evidence showing, by cold storage zvarehousemen receivable against him Minn-. 493 where rent of safe deposit boxes in default N. Y. 617 of sale of goods for storage charges, . . .Del. 99, N. Y. 628, N. C. 683 AFFIDAVIT. required where warehouse receipt pledged, penalties La. 345 essential where pledge made by warehouse receipt La. 364 rquired in incorporation of warehouse company, Mich. 424 AGENTS, in possession, deemed true owners, when Ohio, 718 intrusted with warehouse receipt or other evidence of title or with possession of goods, regarded as owners Me. 368 taking receipt in own name, owner protected, Ga. 141 when personally liable for storage charges Ga. 127 who assists warehouseman in wrongfully disposing of stored grain is personally liable, Minn. 490 demand for delivery of goods should be made upon, in charge of warehouse Minn. 489 fraudulent disposition of goods by, a felony, penalty ... .Mich. 429 tax on all agents of packing houses, z'alid Ga. 149 INDEX. 999 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. AGREEMENTS. . . . page between carrier and warehousemen contrary to shipping direc- tions, unlawful Mont. 583 in restraint of trade unlawful, penalty Kan. 297 to compromise claim cnforcable, • Colo. 90 may make contract a bailment or sale as desired. '.III. 197 AGRICULTURAL PRODUCTS. special vendor's lien of five days upon, La. 353 "ALL CLAIMS AND LIENS." held to include cartage charges, Calif. 75 ALTERATION. liabilitv in case of altered receipts V. W. R. A. 5. Wis. 923 of ord'er or straight bill of lading, effect Minn. 47.-) of warehouse receipts, penalty Ind. 238. Ore. 771 ANTECEDENT DEFT. goods deposited by agent as security for Ohio, 718 valid lien for, hv delivery of goods to warehouseman by osten- sible owner, '. Ohio, 719 statute giving agents, factors the right to deal with property as their own not applicable to Me. 368 APPEALS, from decisions of inspectors of grain, Minn. 461, Mo. 533, Mont. 576, Okla. 751. Wash. 901, Wis. 953 in procedure for location of warehouse on carrier's right of way N. D. 696 . to circuit court respecting rental of warehouse on carrier's right of way ; S. D. 832 to Supreme Court in matter of elevator site on railroad right of way Mont. 570 to district courts from railroad and warehouse commission, Minn. 444 from District to Supreme Court in proceedings under ware- house act Minn. 447 APPOINTMENT, nf members of frrain and warehouse coinmission, ..111. 187, \N i_s. 938 duties and qualifications of inspector or tobacco Md. i7ti-?'?>7 of grain inspectors Tufl- 2.^- of weighmaster I". 192 APPRAISERS, appointment anrl duties of where goods sold for charges. Wyo. 978-979 where goods pledged and warehouse receipt to be sold, . .La. 346-347 APPROACHES, to warehouses, care required, ^"- 1"° APPROPRIATION, for carrying grain inspection act into effect Mont. 587 for grain inspection fund Minn. 464 ARBITRATION COMMITTEE. c, ^, , nc^ appeals from decisions of inspectors of grain to, .Mo. 533, Okla. 751 1000 • INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. ARTICLES OF FOOD, pack defined Cal. 64, la. 267, La. 354, Mass. 399, Neb. .S89, N. D. 705 if diseased or tainted must not be cold stored La. 355, N. D. 706 certain, not to be placed in cold storage Mass. 400 dates of receipt in and withdrawal from cold storage to be marked on containers of La. 355, Neb. 591 not for human consumption, to be so marked Neb. 590 ASSENT, not implied by acceptance of bill of lading containing exemp- tions, when, Ga. 147 ASSESSMENT, of taxes against grain in store, Minn. 485 ASSESSORS, of taxes to be furnished lists of personal property on storage, penalty Mass. 399 ASSIGNEE, rigltts acquired by, of negotiable warehouse receipt ///. 220, 221 of goods to be sold for charges to be notified of sale, when, D. of C. 108 ASSIGNMENT, no personal liability upon assignee of warehousemen Ky. 340 ASSIGNOR, of warehouse receipt, not liable on, when ///. 220 ASSUMPSIT, may be maintained by warehousemen for goods shipped by them as such, Ala. 30 bailor may waive tort and sue in Ga. 125, ///. 199 "AT OWNER'S RISK," when stated in receipt, warehouseman bound to exercise ordi- nary care, Colo. 92, Tenn. 850 ATTACHMENT. See also GARNISHMENT. property in safe deposit boxes subject to, D. of C. 110, A^. Y. 639, R. I. 802 contents of safe deposit boxes not subject to Pa. 788 where property bailed for a specific time, not subject to, in action against bailor, A'^. H. 599 goods not subject to when negotiable receipt outstanding, U. W. R. A. 9, Wis. 925 of goods where negotiable receipt outstanding Pa. 780 of goods where bill of lading issued, good, when Tenn. 853 trustee may by warrant take possession of papers, etc Pa. 782 how made of stored goods and negotiable warehouse receipt outstanding Me. 369 of stored goods regulated Pa. 780 will not lie against stored goods, when, Kan. 304 of stored goods, owner cannot maintain trover Tenn. 846 warehousemen entitled to bond if negotiable receipt outstand- ing, Fo. 789 warehousemen may be garnishee, Pa. 789 in action against warehouseman, commingled grain not sub- ject to, ///. 210 against property in possession of factor, Texas, 861, 862 INDEX. 1001 References to laws are printed in roman; those to decisions in italics; the letters ' U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. ATTACHME'NT—Coutiniied. page concealing goods by warehousemen from constable or sheriff, a misdemeanor Pa. 786 holder of receipt to be deemed "garnishee" Pa. 780 that goods had been removed under, a good defense in action by holder of receipt, when, ///. 210 action of warehouseman in permitting, does not constitute con- version Mass. 404 valid against pledge of non-negotiable receipt issued by private warehouseman, Mass. 412 notice to owner in case of Mich. 422 stored goods not subject to in an action against bailee Neb. 595 although subsequently dissolved, warehouseman has lien against goods stored by sheriff, Mo. 552 penalty for negotiating warehouse receipt without disclosing. Me. 369 by putting keeper in actual possession, Calif. 77 sheriff authorized to break outer door, Vermont. 874 action against sheriff for forcible entry of warehouse .Vermont, 874 of warehouseman's lien as his property, quaere? ///. 205 ATTORNEYS FEE, to be allowed in action against warehousemen, when Minn. 452 .\TTORNEY-GENERAL, ex-officio attorney for state grain inspection department. .Mont. 577 ex-officio attorney for railroad commissioner S. D. 826 ex-officio attorney for railroad and warehouse commission, Alinn. 441 attorney for chief inspector of grain, Kan. 284 given right to inspect safe deposit boxes on death of lessor, 111. 194 to prosecute for violations of warehouse laws, when Mo. 535 and states attorney to prosecute public warehousemen for vio- lation of act, 111. 190 ATTORNMENT, not necessary by warehouseman to complete a symbolic de- livery, Mo. 560 AUTHORITIES OF U. S.. warehouseman not liable for cotton taken by La. 361 BAILEE. See also, BAILMENT. defined Ore. 766 obligation of to keep and return goods Porto Rico 98S duty to make record on receipt of goods Wis. 931 answerable for ordinary negligence, A^ H. 599 may maintain action against one who injures goods while in his possession, la. 270, Mo. 557 may sue in own name, Me. 371 has right to possession and special right of property in the goods Ga. 122 is subject to orders of depositors, La. 357 can not use stored goods without bailor's consent,. .. Porto Rico, 989 can give no lien upon property good against owner Me. 372 cannot deny bailors title . .Md. 388. Kau. 304 who converts goods to his own use guilty of embezzlement. Ida. 163 embezzlement by defined Utah, 871 sale of goods by, void, N. H. 599 1002 INDEX. References to laws are printed in roman ; those to decisions in^ italics ; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. B-MLMENT. See also, BAILEE, BAILMENT AND SALE, DE- POSITUM. ''A*;'.': defined bv law Ga. 122 defined bv the court ^'^cl 105 facts constituting. Mich. 434 essence of contract of ■.••••; ^'P' ^^^ bailee cannot acquire title adverse to his bailor. JVis. 969 universal rule is that only ordinary care is required Kan. 302 ozcner mav maintain replevin zvhere property in hands of bailee. .'. .- ^^^- ^71 storage of grain, although conuninglcd. is ///. 195 prima facie case, Ga. 127 contract for return of identical goods D. of C. 109 bailee in possession cannot give title to third person D. of C. 109 which may be conz'crtcd into a sale D. of C. 109 ■with and without an interest Del. 105 degree of care required of bank holding bonds for collateral.Md. 388 ivhen not countermandable • • -Md. 387 noods belonging to another, bailee inav refuse to deliver to ■ bailor. .....: ". Wis.96% rights of joint bailors when goods divisablc and when not divisable .• Porto Rico, 990 no implication of sale from fact that goods are bailed, Pa. 787 although a trust, not cognizable in equity ....West Va. 917 with power of sale constitutes personal trust which cannot be delegated, Vt. 874 rights of action to owner and to bailee where trespass against the property is committed • Ga. 12.S measure of damages in case of loss or injury Ga. 125 hresumhtion of neqliqence where goods not returned on de- mand .- ^\ cc . oyo bailee may show assignment of title by bailor since begin- ning of: ...Me. 372 where grain stored and commingled it constitutes a bailment, Minn. 471 contract of. established by warehouse receipt Ind. 248 statute of limitations in case of, D. of C. 110, Ga. 125. la. 272 BAILMENT AND SALE. See also BAILMENT, CUSTOM. EVIDENCE. JURY, SALE. rule stated distinguishing betzvcen the tzvo. Conn.. 94. Ind. 249, 250 when contract a bailment and zvhen a sale ///. 195, 196. 197 zvhere grain commingled transaction held to be a bailment, III. 208, Ind. 248. la. 271, 272, Kan. 302. Kv. 324. Mich. 434, Minn. 489, Mont. 587, N. D. 692. Ore. 772, S. D. 823. Va. 879 grain commingled, receipt construed and transaction held to be a bailment, Ohio. 730 facts stated and held to constitute a sale, III. 208. Ind. 248, la. 271. Kan. 304. Minn. 488, Mo. 550, Ohio. 729 where grain is commingled it is neither, ■HI- 207 where wheat to be ground and flour returned, transaction a bailment ". J^a. 892 where under a receipt depositor may convert bailment into sale Mich. 434 may be regulated by agreement irrespective of statutes ///. 197 a question for the jury, Ohio, 731 INDEX. 1003 References to laws are printed in roman : those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. BANK, PAGE liable for loss of jczi'elry, resulting from negligence, Okla. 760 liability for care of package which it keeps for customer with- out compensation, Ga. 124 care required of, when holding bonds as collateral Md. 388 conducting a warehouse, ultra vires no defense where conver- sion shown, ///. 199 BILL. tobacco warehouseman must render, to seller, N. C. 681, S. C. 811, \'a. 882 BILL OF INTERPLEADER. See INTERPLEADER. BILLS OF LADING. See also ORDER BILLS OF LADING. STRAIGHT BILLS OF LADING. /;; General, defined, Me. 372 defined as written simple contracts, Mass. 413 functions of defined, La. 366 parol evidence receivable so far as thev are receipts, Ind. 258, Me. 37.^ parol evidence not receivable to z'ary la. 277 parol evidence of a separate agreement rceivable Md. 392 parol evidence that goods never received proper \Id. 392 not a contract, parole evidence receivable, Ore. 777 partakes of nature both of receipt and contract Mo. 561 not to issue unless goods actually received, Aric. 48, Mo. 514. N. J. 602, Wis. 921 stand for the property they represent, Ga. 148 transfer of a symbolic delivery of goods, Te.vas, 867 transfer without indorsement passes equitable title, Ark. 55 transfer passes title to property represented, Mo. 561 written indorsement necessary to pass legal title, Ark. 48 recital of condition of goods, means only external condition. Ark. 55 "in good order" means only external conditions la. 276 when statements therein open to explanation Conn. 98 statements therein as to value binding on shipper Conn. 97 transfer of same as that of warehouse receipt, Calif. 84 breach of trust by one holding, penalty Md. 376 statements on, to put one on notice, Md. 391 burden of proof in action upon Me. Z7?i sale of defeats right of stoppage in transitu Me. Z72i stipulation in, as to value of goods held valid Calif. 83 when statement "contents unknorvn" zvill not protect carrier. Calif. 83 delivery by warehouseman to one presenting, proper Mo. 554 carrier not estopped from showing non-receipt of goods,. .N. C. 687 carrier not estopped as to third persons from denying receipt of goods ^rk. 56 not conclusive as to ownership of goods Miss. 510 provisions of warehouse laws made applicable to Mo. 516 may be transferred by indorsement .A^rk. 49 notice must be brought to purchaser in order to defeat Ga. 148 sole evidence of contract of carriage Ga. 148 indorsement ncccssar\< to maintain action on Ga. 147 lOCM- INDEX. References to laws are printed in roman; tliose to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. i'.lLLS OF LADING— 0'»//»J(crf. _ ' _ page ill dorse III cut on bv agent of condition of goods, when evidence, Ga. \47 bank honorinti draft zvith. attached protected although ware- houseman had been guilty of conversion Minn. 501 delivery ivithout return of, carrier liable, .Ga. 146 custom contrary to terms of must be proven to be uniform. Texas. 870 only indicate prima facie ozvnership in consignee Te.ras. 869 possession of before receipt of goods, attachment, effect. .Venn. 853 As Collateral. a valid pledge bv, ^.v. 330 rights of pledgee West Va. 918 pledgee may recover of one who wrongfully converts Mass. 414 pledgee may rely upon provisions of as binding la. 277 transfer without indorsement, sufficient, Ark. 48 fraudulently by agent, bank protected, Mass. 414 Bona fide holder. one cannot be. if bill issued in name of fictitious person Ala. 40 Duplicates, carrier liable on and estopped by, Kan. 308 must be so marked, penalty Minn. 473 Exemptions in. recognised by common law, Md. 392 assent to implied by acceptance of, Colo. 92 carrier has burden of showing them to be reasonable Mass. 414 carrier has burden of proving loss to be within Mass. 413 against unavoidable accident, does not change carrier's liability. New Mex. 613 conditions printed on back of. evidence Vt. 875 measure of damages zvhere goods destroyed Tcnn. 853 to he strictly construed Tenn. 853 not binding zvhere negligence shozvn. Conn. 98, D. of C. 112, La. 366, Mass. 414, A^. C. 686 not valid against fraud, negligence or misfeasance Colo. 92 valid, except where against carrier's negligence Tenn. 853 stipulation for a diminished degree of responsibility from that imposed by law, z'alid, Conn.. 98 unreasonable provisions respecting A'^. C. 687 requirement of, notice of loss tvithin thirty days, held un- • reasonable and z'oid N . C. 687 reduction of carrier's liability to ordinary care, stistained,. .N. C. 687 against liahiliiy for fire I'alid if supported by consideration, Tenn. 852 what valid .Kan. 308 certain, modifying liability of carriers as insurers, permissible. Miss. 510 attempting to change liabilities imposed by law declared void. Mo. 515 contrary to code, must show shipper's express consent to,..Ga. 147 Fraudulent, penalty for issuance of Minn. 473, 474. Mont. 565 when goods not in possession, penalty, Md. 375 INDEX. 1005 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. BILLS OF LADmC— Continued. page Negotiability, transfer equivalent to dclii'crv of the goods represented. Del. 107. Kan. 308, Mass. 414, Mont. 586, Tenn. 853 are not negotiable instruments, Ala. 40. Ga. U7. 148. La. 366, 367, Mass. 414, Pa. 797. Te.vas. 869 effect of statute declaring them negotiable, Pa. 797 title passes bx delivery as against attaching creditor of vendor. S. C. 817 effect of indorsement Mich. 439, Neb. 597 transfer of passes title to the goods,. Me. 2>72), Vt. 875 if intention clear, delivery without indorsement passes title. Pa. 798 must be surrendered before delivery of goods Ark. 49 effect of assignment la. 277 assignment of. after delviery of goods ineffectual to pass title. la. 277 how transferred Mo. 515 declared negotiable by statute, .. Ark, 49, Del. 100, Ida, 156, Mo. 515 declared negotial)lc unless marked non-negotiable Wis. 920 Non Negotiable, act not applicable to Del. 100. Mo. 515 assignee of, entitled to goods, A^ Y. 673 BILLS OF .SALE, delivery of goods bv, and bv warehouse receipt, distinquished, ' A^. y. 648 delivery to one holding, from depositor, warehousemen pro- tected, . Pa. 793 BOARD OF COMMISSIONERS, powers of respecting inspection of grain Okla. 749, 50, 53 BOARD 0I< COMAIISSIONERS OF RAILROADS AND WARE- HOUSES, warehouses of Class A, must procure licenses from 111. 168 supervision over chief and deputy inspectors and warehouse registrar ///. 176 BOARD OF HEALTH. See also, STATE BOARD OF HEALTH. quarterly reports to, from cold storage warehousemen Del. 103 power and jurisdiction in cold storage matters Del. 103 consent of necessary for cold storage exceeding six months, Del. 102 BOARD OF RAILROAD AND WAREHOUSE COMMISSION- ERS, to establish grades of grain 111. 185 to determine compensation to carrier for erection of warehouse on its right of way Kan. 300 to appoint committee of appeals ///. 185 BOARD OF RAILROAD COMMISSIONERS. See aLso, RAIL- ROAD COMMISSIONER. powers of respecting bonds of public warehousemen N. D. 711 disagreements adjusted by, where warehouse site located on railroad right of way Ta. 266 100() INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. BOARD 01- SUPERVISORS, pagk to appoint inspectors of weights and measures Calif. 63 BOARD OF TRADE, has no authoritv to appoint inspectors of grain in zvarehouses of class B,..'. ///. 167 issuance and negotiation of receipts under regulations of, not aflected by Act Kan. 297 // violating laws, state alone must prosecute, Kan. 304 BONA FIDE HOLDER, of warehouse receipt protected although the description of the goods is vague Tenn. 850 of warehouse receipt protected, ///. 221 of warehouse receipt takes same title as though goods were delivered to him, '. Va. 894 warehousemen estopped to deny receipt of goods, S. D. 821 of receipt containing false statements, protected, Ohio, 736, 737 only entitled to recover amount he paid for fraudulent re- ceipt, 5. £>. 833 of lost receipt, protected Wis. 924 may maintain action for purchase price of goods sold,. . . .Tenn. 849 carrier fnay show non receipt of goods mentioned in bill of lading, although in case of, N. C. 687 onlv defenses against where warehouse receipt issued by mistake, '. Miss. 509 of pledged warehouse receipt protected as against owner of goods, Md. 391 protected when goods delivered without return of receipt,. .Ind. 257 of warehouse receipt protected where warehouseman sells stored goods Minn. 497 protected although goods not actually in store Ky. 336, 337 protected although purchase price for goods has not been paid. Ky. 336. 338 0/ fraudulent receipt protected Ga. 143, 144 one taking warehouse receipt as security for pre-existing debt is not, Mo. 560 assignee for benefit of creditors, is not. of zvarehouse receipt. Pa. 795 one taking receipt for goods in bonded warehouse after expira- tion of time provided by law for removal, is not, N. Y . 641 one taking warehouse receipt for prior indebtedness is not,..Ky. 336 who is. a question for the Jury Neb. 597 BOND. See also, UNDERTAKING. public warehousemen must give Ala. 21, Ga. 118, 111, 170, Kan. 285, Ky. 316, Mass. 393. Mo. 511, 520, N. Y. 677, N. D. 691. 698. S. C. 805. S. D. 820, Tex. 855. Wis. 940 by public warehousemen of class A 111. 170 of chief inspector of grain and deputies, .111. 175, Ky. 319, 320, Minn. 460, Mo. 530, Mont. 573. Okla. 748. Wash. 896, 897. Wis. 950 of inspectors and weighers of grain, where filed Wash. 897 tobacco warehousemen must give Ohio, 723, Tenn. 838 of weighmaster 111. 192, Mo. 5.38 of warehouse commissioner Mo. 518 inspectors of tobacco required to give, Md. 376, Mo, 539, Ohio, 724 of grain and warehouse commissioners, Wis, 938 INDEX. 1007 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. BOND — Continued. page state hay and grain inspector to give Ida. 152 of members of railroad and warehouse commission 111. 187 of committee of appeals 111. 186 of samplers of tobacco must give \^a. 880 required of proprietors of oil warehouses Ky. 314 action on, of public warehousemen Ala. 21, Mass. 393 surety on, of public warclwuscniaii not discharged by bank- ruptcy of warehouseman Mo. 512 action on, of public warchouscutan. when damages nominal and when substantial Mo. 512 requisites in action upon, of public warehousemen A'. D. 711 powers of board of railroad commissioners respecting, of public warehousemen N. D. 711 injured person may sue on N. Y. 677 public warehousemen liable on, for negligence Mo. 528 under warehouse laws, where to be filed S. D. 826 injured party may sue on public warehousemen's bond, . . .Okla. 748 public warehousemen liable on, for negligence Okla. 747 amount of. for public warehousemen Okla. 740 new, not required wliere warehouse moi'cd Ky. 342 anv injured person mav sue on. of class A, for violation of act, 111. 182 no defense to an action on that warehouseman had been sus- pended from the exchange -^.V- 326 action on replevin, burden of proof _. ///. 210 of members of Minneapolis and Duluth grain inspection boards, Alinn. 460 where all required, must be filed and suits on Minn. 462 required of proprietors of terminal warehouses Alinn. 456 members of railroad and warehouse commission required to give Minn. 439 conditions of, filing fee, etc., of public warehousemen Mont. 577 suit on, of public warehousemen by depositor — Mo. 530 provisions respecting actions upon, against public warehouse- men N. D. 699 action on, of warehouseman should be brought in the name of State, iV. Z) 691 not required from carriers operating grain warehouse Wis. 963 who may sue on, of tobacco warehousemen Tenn. 838 BONDED PUBLIC WAREHOUSEMEN, how to become Oa. 118 BONDED WAREHOUSES, action for storage not maintainable on stated facts Mass. 405 withdrawal obtained by fraud, spirits although mixed with others liable to the tax, Mass. 405 act 1876 not applicable to receipts issued by La. 366 sale or pledge of receipts transfers interest in goods represented, Pa. 795 provisions respecting establishment of Porto Rico, 991 BONDS, warehouse companies may honor money by issuing La. 348 stolen from vault, measure of damages Md. 390 degree of care required of bank holding, as collateral, Md. 388 1008 INDEX. References lo laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. BOOKS. PAGE of public warehousemen to he open for inspection, Ga. 120. 111. 189, Me. 369, Mass. 394, N. C. 678 of public warehousemen subject to examination by warehouse commissioner Mo. 534 railroad and warehouse commission has power to examine, Minn. 454 samplers of tobacco must keep, Va. 885 board of commissioners to examine, of public warehousemen, Okla. 752 of record to be kept by warehousemen S. C. 808 BRANDS AND MARKS. See also DISTINGUISHING MARKS, MARKS, must appear on warehouse receipts, la. 259, Ky. 311. Mass. 394. N. C. 678 warehousemen not liable, if correctly stated in receipt Wis. 924 warehousemen not liable if contents do not conform to, Mont. 566, Okla. 758 on receipts for goods in warehouses of class C 111. 182 to be on warehouse receipts of class B Ind. 232, 234 no penalty provided for failure to put, on receipt, ///. 182 facts stated and held sufficient description of goods, La. 364 must be sufficient to identify property, Ky. 334, 338 western tobacco to be so branded Va. 883 use of false, prohibited, penalty, Va. 888 penalty for false, on tobacco, Va. 883 BREACH OF TRUST, penalty for, by one holding warehouse receipt, Md. 376 BREAKING IRONS, tobacco warehousemen must keep, Tenn. 839 BRIBERY, of chief inspector of grain, penalty Wis. 952 of any officer under grain inspection act, penalty, Kan. 283, Mont. 576 BROKERS. See also, FACTORS. lien for advances provided, Wis. 935 delivery made to, when wrongful, Ga. 130 BROOMCORN, warehousemen must insure, Okla. 757 fees for weighing, storing and insuring, prescribed, Okla. 757 BUILDING. See also, WAREHOUSES. for storage purposes must be reasonably safe,..N. Y. 651, R. I. 802 warehousemen liable for want of care in proper construction of warehouse, Okla. 760 requirements respecting warehouse, Tenn. 845 collapse of, where goods stored, negligence presumed, N. Y. 653, Wash. 913 if goods removed from one agreed upon and are accidentally destroyed, warehouseman is liable, Mich. 437 INDEX. 1009 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. BURDEN OF PROOF. See also, EVIDENCE, PLEADINGS. page always on plaintiff to show negligence. Ark. 50, Calif. 78, Ky. 3Z2, La. 361, 362, Mass. 410, 411, Mo. 555, N. Y. 652, 654, Pa. 791, 793, Tenn. 847, Tex. 865, Wis 971 strictly speaking on plaintiff throughout, Ind. 254 shifting of, explained, Miss. 507 ajtcr prinia jacic case z^archousonau has. of shoiviiuj freedom from negligence, ///. 212, 214, Md. 389. Minn. 494 warehouseman must disprove negligence, Del. 107 when on bailee to show proper diligence, Ga. 126 on warehouseman who fails to deliver the goods on demand, Ga. 118, 122 upon defendants to show they have not goods missing from warehouse, when, Calif. 78 when warehouseman must show loss not caused by his negli- gence, Calif. 79 where loss of weight is shown, Ga. 136 when on bailee when goods lost or injured, Ga. 135 when otitis on defendant warehouseman, Ind. 254 on defendant warehouseman where he sold goods covered both by receipts and bill of sale, Minn. 498 not shifted to defendant by showing goods injured, Md. 389 on warehouseman to show absence of negligence, where goods destroyed by fire, N. D. 714 bailee must show how goods were lost, Pa. 787 warehousemen must account for loss of possession of goods, N. Y. 633, 638 on warehouseman to show loss of goods not due to his negli- gence, A ev. 598 on plaintiff to show theft of goods, A^. Y. 658 where negligence not alleged, upon warehouseman where new matter alleged, Mass. 410 after prima facie case proven, burden upon warehouseman to excuse failure to deliver, Calif. 67, 69, Mass. 409 on plaintiff to show pledgee took warehouse receipt with notice of fraud, ///. 222 on plaintiff where warehouseman alleges loss from cause which would excuse him, Ala. 28 in action on replevin bond, ///. 210 on warehouseman to show delivery to true oivner when receipt not surrendered, > Miss. 509 on carrier to show exemptions in bills of lading reasonable, Mass. 414 on carrier to bring loss ivithin exemption in bill of lading, .Mass. 413 on carrier to show loss due to cause existing before it received the goods, '. Me. 373 BURGLARY, defined, penalty, Ind. 243 of warehouse, evidence received showing, Mo. 556 BUSHEL, to be unit of standard weight or measure Wis. 966 BUTTER, injury to by deleterious odors, warehouseman liable, Ind. 253 cold storage warehouseman liable for injury to by odors or improper temperature, Mich. 437 64 1010 INDEX. Keferences to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. BUYER. PAciK of grain entitled to, certificate of inspection and weighmaster's certificate N. D. 704 BY-LAWS, of warehouse corporation, how made, Ind. 241 for safe deposit companies, directors to make N. Y. 616 C.\LLS, upon subscribers fur stock in warehouse corporations, ... .Ind. 240 CANCELLATION, warehouse receipts to lie cancelled 62 wliat plaintiff must shozv as to condition of goods when placed therein La. 361 evidence rcceii'able to explain meaning of term N. Y. 657, 672 not entitled to charges zvhere fruit ruined bv too lozv temper- ature ' A^. Y. 656 evidence of newspaper advertisements of "uniform temperature" received Minn. 493 allowing drippings from brine pipes to fall on stored cheese is negligence Minn. 494 contract for construed and loss held not within any of exemp- tions stated, Minn. 497 zvarehouscman liable for failure to maintain proper tempera- ture Mich. 437, A^. Y. 656, 657 zvarehouscman liable for injury resulting from exposure to injurious odors, Mich. 437 prima facie case how established, Wash. 914 rule of ordinary care, applicable, Tenn. 850 what degree of negligence must be shozvn where goods injured, ' ' Pa. 792 negligence, a question for jury, Minn. 493, Pa. 792 absence of express agreement as to temperature Conn. 95 warehousemen liable for injury from odors, JVash. 913 court to determine if relation of landlord and tenant e.rists where room rented, Wash. 912 where depositor has control of rooms Wash. 914 proper charge to the jury where stored goods injured Pa. 792 proper and improper averments in declaration alleging damage, Del. 106 COLD STORAGE LAWS, if any sections of, held invalid, others to stand N. J. 608 COLD STORAGE WAREHOUSE, defined Ind. 244. Pa. 782 "COLD STORED," defined Ta. 267, La. 354, N. D. 705 COMBIN.ATIONS, warehousemen prohibited from entering into Kan. 290, Mo. 522 between warehousemen and carriers prohibited, Okla. 741, S. D. 826 in regard to leaf tobacco prohibited Ky. 323 for delivery of property contrary to owners directions pro- hibited, penalty H]. \^\ that zvarehouscman was in an unlazvful, no defense by sureties on his bond, " Ky. 326 INDEX. 1017 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. COMMERCIAL USAGE. See also, CUSTOM. page warehouse receipt construed in the light of, ...hid. 256 report of Commission to investigate subject, to be printed, Mass. 402 COMMINGLING OF GOODS. See also. COMMINGLING OF GRAIN. warehouseman's liability in case of, U. W. R. A. 8, Wis. 925 fungible goods may be commingled, when, U. W. R. A. 8, Wis. 925 of different qualities prohibited, Ore. 762 prohibition against, proviso, Ariz. 43 receipt for good, regardless of, Ga. 119 contract permitting to be in unmistakable terms, La. 360 loss to be borne pro rata, La. 360 when replevin will lie, in case of, ///. 207 COMMINGLING OF GRAIN. See also FUNGIBLE GOODS, COMMINGLING OF GOODS, COMMINGLING OF TO- BACCO, authorized In' statute, Hi. 170. Kan. 296, Me. 370, Mich. 433, Okla. 741, Wis. 941 permitted in warehouses of Class A Ind. 228 of different grades prohibited,. Ida. 156, 111. 165, 179, Ky. 322, Mo. 521 title of holder of warehouse receipt, Me. 370, Mass. 394, N. C. 678, S. C. 808 receipt holders are tenants in common. Ind. 252, Minn. 492, Ore. 774 pledgee of receipt tenant in common with other receipt holders. Minn. 492 transaction declared a bailment Minn. 471. S. D. 823, Va. 879 facts stated and held to constitute a bailment. III. 195, 208, Minn. 489, Kan. 302, Ohio. 730, Ore. 772, 775 facts stated and held to constitute a sale, III. 196, 208, Minn. 488, Mo. 550, Ohio. 729 when a bailment and when a sale .///. 196. 197, la. 271, 272 whether bailment or sale, a question for jury Ohio, 731 neither a bailment nor a sale, ^^l- 207 when replevin will not lie in case of A^ D. 713 when replevin will lie in case of ///• 21^ right to maintain trover not affected by Jl^- 208 if unauthorized it constitutes conversion, J(i- 273 does not constitute conversion, _• • •^'"'j ''" unauthorized sale bv warehouseman constitutes conversion and no title pa.sses.. . .". Minn. 489, 490 losses to be borne in proportion to the amount deposited. III. 208, Ore. 773-77A not subject to zvarehouseman's debts ,V^'/' tIq valid sale of part of goods without segregation .V > . 648 warehouseman liable if he sells for his own account Ohm. 73,i effect of. zvith grain of better qualilv zvithout bailor's consent. IVts. 972 sale by warehousemen of all stored grain ronstiliiirs conversion. IJ IS. 971 equity jurisdiction where there is a loss • flj- 209 inclu'dinn zvarehouseman's grain— depositors protected ///. ~^i> not .Kubject to attachment in action against zvarehouseman.. .III. IW act attempting to permit, of warehouseman's and rusloiners uii- constitutional aV" / 434 evidence as to usage -"^ """■ ^' "^ 1018 INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. COMMINGLING OF GRAIN— Co»//»»,., , entitled to damages sustained, balance to consignor,. .. .Mass. mi CONSIGNOR, j^^^^ 4,, duty of, to pay freight, ^«-^-^- ^^^ CONSTABULE, -.^^ -70 fees of for sale of goods for charges ^^^ "^ CONSTITUTIONAL LAW, statute prescribing maximum rate of storage charges constitu- tional. III. 167, 255, Mo. 563, N. Y. 631, 675, N. D. 715 act requiring inspection of safe deposit boxes on death of lessor, constitutional, J^- 195, 201, 226 provisions of act to prevent issue of false receipts, etc., germane to its title and constitutional, • j,^^^- qA warehouse act does not embody more than one subject, Tcnn. 8b4 act requiring grain warehousemen to return certificate of tn- spection held constitutional, • • • ■^- D. 716 provisions of act impo.nng penalty for issuance of fraudulent receipt, constitutional, Ore. 778 act taxing foreign corporations doing business tn the stale con.<;titutional ^- ^- ^^ 1020 INDEX. kcfcrcnces to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. CONSTITUTIONAL L\\\'—CoutiiiHcd page law requiring one storing only his 07i.'u grain to frocnre a li- cense, constitutional, Minn. 502 state may hncfully {prescribe regulations for stock yard busi- ness, Ka)i. 309 act attempting to confer on the state poiver to engage in grain zvarehouse business unconstitutional, M in )i. 502 a statute requiring carriers to deliver to a storage co)npany un- claimed freight is unconstitutional, Minn. 502 a charter pro^'ision that zvarelwuscincn only liable under con- ditions stated in receipt, void, A'. C. 687, 88 act authorizing warehouse company to take land for its use unconstitutional, z^- X- ^"^^ act attempting to permit mixing of warehouseman's grain with that of his customers unconstitutional 111.225 act attempting to create state warehouse system, held uncon- stitutional, -5". C. 818 CONSTRUCTION, act prescribing storage rates for cation, being penal to be strictly construed, S. C. 814 of laws "pertaining to inspection of cars to be liberal,. Wis. 965 warebouse laws to be liberally construed with a view to the public welfare ; • • • Minn. 453 of receipts in accordance with law of state where grain located, Minn. 498 how act pertaining to warehouse receipts, to be construed,. Wis. 930 of warehouse receipt against warehouseman, Ark. 54 CONTAINERS, defined, Pa. 782 of food to show date of receipt and withdrawal from cold storage la. 269. Neb. 591. N. D. 707, Pa. 784 shall bear no marks other than those prescribed by cold stor- age laws, P^- 785 CONTENTS, of safe deposit boxes not subject to attachment, Pa. 788 of safe deposit boxes subject to attachment, ' D. of C. 110. N. Y. 639, R. I. 802 of safe deposit box not "in possession or under control" of company N. Y. 622, 639 of safe deposit boxes, when rent m default, disposition of, N. Y. 619 warehouseman not lial)le where, do not correspond to marks and brands Mont. 566 "CONTENTS UNKNOWN," . when statement in bill of lading will not protect carrier,. .Calif. 83 stated in receipt, held to protect warehouseman ///. 217 CONTRACTS, ,,, ^ „__ warehouse receipts are, _.///. 223, Ky. ^^^, TrnH. 85U extent to which a warehouse receipt is /"«■ 256 words in receipt in regard to insurance held not to constitute contract to insure ^"- |^^' ^'^^ by warehousemen to insure, liable upon default Ohio, 734 when to insure, do not make warehousemen insurers. Tcnn. 848, 849 INDEX. 1021 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. CONTRACTS — Continued. page fo insure in owner's name, breach of, Ga. 137 parol evidence admissable on matters not covered by storage contract, Ark. 51 written parts of control over printed parts, Minn. 496 effect of change in ownership of warehouse upon, of storage, N. Y. 637 construed and held to give zvarehousonan power to sell,. .Minn. 500 with carrier saving it harmless against loss by fire from its engines, void, Minn. 503 breach of, to store in particular room, not liable for loss by fire after removal to another room, ///. 214 one using space hired by another bound by terms of, with warehouseman, ///. 206 warehouseman may terminate, of storage, ///. 206 between warehouseman and railroad, reasonable construction of, III. 206 may be made of bailment or sale as desired, ///. 197 unusual, of storage of grain considered and warehouseman held not liable, La. 359 nature of, between factor and principal, La. 358 rule stated in regard to those ultra vires, exceptions ..Ind. 250 to store in a designated building, warehouseman liable if re- moved and destroyed Kan. 306 facts stated and held not to constitute one of storage,. .Minn. 491 governing storage construed and held a bailment, la. 271, 272 warehouseman's lien may be waived by A^. H. 599 receipt containing exemptions, delivered several weeks after re- ceipt of goods, held not to constitute contract of storage, N. Y. 648 right to sell goods for charges may be modified by N. Y. 645 where for a definite period of storage, must be fully performed, before charges earned N. Y. 643 not to sell goods for charges, evidences of A^. Y. 659 bill of lading is a simple written contract Mass. 413 payment by warehousemen of custom duties in violation of. not refundable, P. /. 994 for bailment may be oral Wash. 911 bailees by, may e.vempt themselves from liability Wash. 911 for storage, although oral, binding as against printed receipt, JVa.';h. 915 between carriers and warehousemen respecting grain, unlawful when Wis. 954 of storage construed and zvarehousemcn held entitled to charges as agreed upon Ohio, 733 between carrier and warehouseman saving former harmless aqaiust negligence, sustained N. D. 714 bill of lading is not, parole evidence receivable Ore. 777 claim for breach of, in action for storage charges, proper,. .Pa. 793 cannot maintain an action in tort in case of Mass. 409 suit for conversion is action e.r contractu ]V. Va. 918 warehousemen's liability may be modified or increased by,..Vt. 873 how, between warehouseman and depositor, ascertained,, .Teiin. 845 of storage construed, facts staled Mass. 407 bailee has no lien, if contrary to terms of contract N^cb. 595 to keep goods in special manner must be complied with,. .Neb. 594 1022 INDEX. ' References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. CONTROL, I'ACK contents of safe deposit boxes not under, of safe deposit company, A^. Y. 622,639 CONVERSION. See also, PLEADINGS. defined -l/^- 551 warcJiousmian liable in case of, _• • • -Ark. 51 sale by warehousemen of all commingled grain constitutes. Wis. 971 commingling grain does not constitute,.... Ore. 772 if commingling of grain unauthorised it constitutes, .la. 273, Kan. 305 unauthorized sale by pledgee constitutes,. A'^. Y- 650 demand not necessary in order to establish,. .. .Ala. 2)7, N. D. 712 necessary to show demand and refusal in action for, A'^. D. 711 demand must be made within reasonable time, IV. Va. 917 prima facie case made by refusal to deliver, A'^. Y. 645 what constitutes prima facie case of, N. D. 711 refusal to deliver on demand constitutes, A^. Y. 636, N. C 684 Tuhen statute of limitations begins to run, Ga. 126 statute of limitations six years, Mich. 435 measure of damages in case of, III. 215, La. 362. Mass. 411, N.Y. 659. R. /. 803 warehousemen liable for unless sale for charges in accordance with statute, Ind. 252. Me. 371. 372. Wis. 971 misdelivery constitutes, Ky. 331, A^. Y. 655, Ore. 772, Tenn. 845 bailee parting zvith goods constitutes, Tenn. 845 unauthorized delivery by warehousemen constitutes,. .. .Ore. 772 wrongful sale by warehousemen constitutes Vt. 875 warehousemen liable for where improper delivery made, ..Wis. 923 pledging of property by bailee is, Colo. 88 sufficiency of complaint in action of, .Ind. 251 action for price obtained by warehouseman for depositor's goods ^^d. 251 established bv proof of failure to deliver on proper demand. Ind. .251 plaintiff must be owner or entitled to possession Ind. 251 tort may he waived and assumpsit maintained ///. 199 that warehouse business ultra vires no defense in case of,.. III. 199 to sell mortgaged chattels without decree of court, ///. 211 allegation and proof of title not necessary, Conn. 95 is not embezzlement, D. of C. 110 in order to establish, a tortious act must be shown, Calif. 70 intermedling with another's goods is not, Calif. 70 proof of demand and refusal to deliver establish Calif. 70 allegation of persistent refusals to deliver on demand held suf- ficient allegation of conversion Calif. 70 delivery to assignee of depositor's broker held to be Calif. 70 improper refusal to deliver goods held to constitute Calif. 70 damaf2;cs recoverable in case of Ida. 163 refusal to deliver unless receipt presented is not Ga. 144 interest allowed from date of demand, Ga. 136 elements of, Ga. 129 delivery to one not owner is, Ga. 129 warehouseman allowing an officer to attach stored goods does not constitute. Mass. 404 .mle on credit when directed to sell for cash is not Ga. 128. 134 commingling of grain is not, la. 272, 274 action at law, not in equity, proper remedy, Md. 388 INDEX. 1023 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. CONVERSION— Con/tHM^d. . page proceedings where public warehousemen guilty of, Mass. 397 depositary guilty of, liable for value of goods, La. 358 where pladgee sells property not embraced in the pledge,. .Ky. 341 what amounts to by bailee, Ky. 327 sale by bailee constitutes, • Ky. 327 unauthorised sale by warehouseman is, and no title passes, Minn. 489, 490 rule stated governing damages for, when wilful and when not, Minn. 495 by warehouseman, findings of court on appeal, .Minn. 501 of stored grain, batik honoring draft with bill of lading, pro- tected, • • •. Minn. 501 removal of goods by warehouseman, from building agreed upon constitutes, Mich. 437 not justified by existence of innkeeper's lien on the goods, .Mich. 428 action in, by mortgagee against vendee of assignee of mortgagor, maintainable, Calif. 71 fraudulent, by bailee, penalty Ga. 123 fraudulent, of proceeds of sale, by bailee, penalty, Ga. 124 will not lie for innocent delivery by bailee of stolen goods. Conn. 96 presumed where warehouseman fails to deliver or account for goods or explain his refusal, Ala. 28 refusal to surrender without valid excuse constitutes, Neb. 595 delivery to true owner always good defense in case of,. . . .Neb. 594 warehouseman guilty of, for wilfully selling more goods than necessary to pay charges, Mo. 553 by warehouse men. commission merchants, etc., penalty, . .Mo. 544 deliverv to receipt holder when chattel mortgage recorded con- stitutes, •. Ala. 30 from warehousemen's failure to make delivery, N. Y. 656 is gist of action of trover, Ala. 32 bailee entitled to satisfaction of lien, in spite of, N. J. 609 by bailee declared /arceny N. H. 599 that goods have b'-fJ removed by operation of law, good de- fense M. N.J. 604 iudqmcnt for storaWc charges not a bar to action for conver- sion, ■ : N. Y. 637 facts stated and held to constitute, A^. F. 636 delivery of freight by warehousemen without collecting charges, constitutes, N. Y. 634 disregard of owner's order to ship in reasonable manner, con- stitutes Wis. 970 transpires upon demand and refusal, N. D. 713 delivery by warehouseman to depositor after notice of real owner's claim, Texas, 862 /;v warehousemen by adverse action against true owner, Texas. 861, 862 evidence as to price of grain, N. D. 713 effect of notice to warehouseman as tn change of ownership of goods ......AT. D. 711 purchase of mortgaged chattel not in itself a conversion,. .N. D. 712 when variance as to date of, not fatal Calif. 71 CORN, . , . measure of damages where that delivered was inferior to that deposited Kan. 307 1024 INDEX. References to laws arc printed in romnn; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. CORPORATE POWERS, , pagk of tobacco warehouse corporations, Ind. 242 CORPORATIONS. See also, FOREIGN CORPORATIONS. oreanization and operation of for conducting safe deposit Inisi- ness, N. Y. 615 may buy and lease real estate proviso, Ohio, 728 to conduct tobacco warehouse business //'(/. 241 to conduct manufacturing business cannot conduct zvarcliousc business, I'^d. 250, 256 for conducting warehouse business, how formed, Ind. 239 organization of, to do warehouse business and guarantee re- ceipts, Ky. 310 although trade name imply a, members liable as partners,. .III. 198 COSTS, warehousemen not liable for in action of replevin, when, ..N. J. 608 COTTON, rates of storage for, prescribed, S. C. 813 warehousemen must insure Okla. 757 re-weighing of, duty of buyer, Okla. 759 fees for weighing, storing, and insuring, prescribed, Okla, 757 delivery to be compressed, constitutes a delivery to warehouse- man, Ala. 22 storage of, incident to its compression, ordinary care,.. . .Texas, 864 public weigher may only weigh as authorized by ordinance, Ga. 127 concealment of, or changing marks, liability, Ala. 25 must be in possession when receipt issued, La. 344 uniform public warehouse receipt for, to be provided Texas, 857 COTTON HOLDING ASSOCIATIONS, charter for by Secretary of State, fees, S. C. 813 COTTON PRESS, not to issue receipt unless cotton in possession, La. 344 COTTON SEED OIL. See, OIL. COUNSEL FEES, may be awarded in cases arising under warehouse act Minn. 447 recovered against warehouseman where he had improperly is- sued duplicate receipts, Ky. 341 COUNTY ATTORNEY, to prosecute for violation of warehouse laws, Okla. 748 duty to prosecute violations under direction of board of com- missioners, Okla. 753 COUNTY COURT, to pass upon undertaking of grain warehousemen, Ore. 765 COURT, to determine rights of parties where public warehousemen guilty of conversion, Mass. 397 deprivation of warehouseman's license by Commission, re- newable in, ///. 200 COURT OF EQUITY. See, EQUITY. INDEX. 1025 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. CREDITORS, PAGE remedies of, to reach negotiable receipt, .. .U. W. R. A. 9, Wis. 925 protected, where private warehouseman issues receipts against own goods, Ind. 253 protected where alleged warehouse receipts issued by debtor against his own goods, Pa. 796 CRIMES. See also, EMBEZZLEMENT, FELONY, PENALTIES, issuance of receipt when goods not received, penaltj^ U. W. R. A. 17, Wis. 929 issue of receipt containing false statement, penalt}', U. W. R. A., 17, Wis. 929 issuance of duplicate receipt not so marked, penalty, U. W. R. A. 17, Wis. 929 receipt for warehouseman's own goods not so stating, penalty, U. W. R. A. 17, Wis. 930 delivery of goods without obtaining negotiable receipt, penalty, U. W. R. A. 18, Wis. 930 negotiating negotiable receipt when one has not title, penalty, U. W. R. A. 18, Wis. 930 violation of warehouse act, La._ 352, Mo. 516 issuance of fraudulent receipt, penalty, Ala. 25, 111. 182, 193 to issue a warehouse receipt for oil not in store, penalty, Ky. 315 alteration or destruction of warehouse receipts, penalties. la. 262, Kan. 296 burglary, entering house to commit a felony, penalties, Ind. 243 shipping wheat of of state, without return of receipt, la. 265 penal sections embraced within title of warehouse act and are are valid, ^It- 224 issuance of receipt against his own grain and pledging same, III. 218 larceny by assistant foreman, embezzlement, Calif. 84 embezzlement by warehousemen, penalty, Colo. 88, D. of C. 109 fraudulent conversion by bailee, penalty Ga. 123 burning of warehouse, penalty Fla. 115 embezzlement by bailee, penalty, Fla. 115 penalty for violation of laws pertaining to warehousemen. Ala. 26 carrying on business of warehouseman without license, penalty, Ala. 26 permitting removal of goods without surrender of warehouse receipt, penalty I'l- 193 requisites of an indictment charging unlawful sale by ware- houseman, ; Mo. 561 word "granary" before "warehouse" in indictment docs not qualify the latter word Mo. 561 evidence of burglary of a warehouse receivable, Mo. 556 prosecution of warehousemen for Mo. 529 improper inspection of grain or scales Ida. 162 failure to make required affidavit where warehouse receipt pledged, l-a. 345 CROCKERY, measure of damages where some of the pieces broken,. .N. Y. 660 CROSSINGS. dangerous, in cities and villages, hearings on Minn. -44'^ 65 1026 , INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. CUSTODIA LEGIS, i^agk zi'hcn property is. and when it is not, Mo. 553 CUSTOM. See also, COMMERCIAL USAGE, USAGE. how existence of proved, Ky. 332 local, cannot change the law, .Ga. 130 contrary to terms of bill of lading must be proven to be uniform, Texas, 870 knowledge by both parties of, must be shown, ///. 201 delivery by warehousemen must be authorized by depositor ., Ore. 772 cannot contradict terms of receipt, irk. 54 facts stated in regard to dealings in receipts and held not a good custom Ala. 40 must be shotvn to have been part of contract between the parties, when, _ Ala. 35 evidence of, permitting commingling of grain, receivable,. .. la. 276 not binding when owner gives warehouseman specific direc- tions to the contrary, Ky. 333 evidence of, respecting ordinary care not conclusive but for the ^ jury Minn. 489 affecting transfer of warehouse receipts, proper evidence,. .III. 220 evidence as to, in regard to insuring stored goods proper, .Ga. 140 of factors to insure, when held liable for La. 362 where, to insure is shown warehouseman liable for loss by fire, Ga. 140, 148. 145 CUSTOM DUTIES, xvarehousemcn not entitled to refundment of, zvhere paid volun- tarily and in violation of contract, P- I- 994 DAIRY AND FOOD COMMISSIONER, powers and duties of respecting cold storage, Pa. 783-785 powers of with respect to eggs in cold storage, Conn. 94 powers of concerning inspections Minn. 486 DAMAGE BY ELEMENTS, held to mean, act of God, Calif. 68 DAMAGES. See also, EXEMPLARY DAMAGES, PENALTIES, recoverable from warehousemen for violation of warehouse laws, ..Ark. 49, Del. 101, la. 261, Kan. 296, Mich. 419, 433 Minn. 452, 481, Ore. 763, S. C. 808, Tenn. 837, Texas, 859, Wis. 925 against warehouseman for violation of warehouse laws, res judicata, .Ky. 325 delay of one day in making delivery, warehouseman not liable, Ala. 29 verdict for, because of injured butter, set aside, Mo. 557 when nominal and zvhcn substantial in action on bonds of public warehousemen, Mo. 512 game and fish commissioner not lial)lc for, Ijecause of search of warehouse, Mo. 549 against carriers for failure to permit track connections with public warehouse Mo. 546 rights of injured persons to recover, not affected by ware- house laws, Mo. 536 recoverable in cases of conversion, Ida. 163 aeainst warehouseman for failure to deliver on proper demand, Ida. 157 individuals may sue public warehnuFemcn for 111. 191 for failure to deliver grain on demand, Ky. 318 INDEX. 1027 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. DAMAGES — Continued. ^age warehousemen liable for under their bond for iniuries to ' stored property Kan. 292 recoverable for violation of provisions fixing maximum change for storing, etc., of grain N. Y. 631 not necessary where goods have been destroyed, .V. Y. 664 warehousemen responsible for. if refuse to issue duplicate re- ceipts, Ariz. 45 holder must show tender of receifyf and all charges in order to recover, La. 351. 360 to cotton, burden of proof La. 361 recoverable where warehouse receipt pledged without required affidavit La. 345 for delivery of goods without surrender of receipt La. 344 consignee entitled to. balance to consignor, Mass. 411 party injured may sue for, irrespective of warehouse laws, Okla. 753 warehousemen liable for. resulting from improper delivery. Ore. 775 DAMP GRAIN. storage charges in case of, prescribed 111. 176 DANGEROUS PROPERTY. sale of, procedure, N. C. 680 DATE. must appear on receipt U. W. R. A. 1. Wis. 921 of deposit and of removal of food from cold storage to appear on containers la. 269, La. 355 of entry and of removal of food from cold storage to be marked on Ind. 244 of receipt of articles of food in cold storage to be plainly marked thereon Mass. 401, N. J. 605 to appear on all cold storage food N. Y. 623 on container, of receipt of food for cold storage Pa. 784 on crate of eggs in cold storage Del. 104 variance as to. in an action for conversion, when not fatal, Calif. 71 DEATH, inspection of safe deposit boxes on. of lessor. .. .111. 194. N^. Y. 621 act requiring inspection of safe deposit boxes on, of lessor constitutional ///. 195. 201, 226 when, of principal does not revoke factor's power of sale,. . .Ga. 131 DEBRIS, cost of removal after fire must be borne b\ warehouseman.. .Ga. 137 DEBTOR, receipt issued a'jainst own goods, void as to other creditors Ohio, 734, 735 not o warehouseman cannot issue tvarehnusc receipts to secure debts Ind. 257 DERTS. grain and warehouse commission not to incur on behalf of State Wis. 956 commingled grain not subject to, of luarehnuscmcn ///. 208 one cannot satisfy ozun when dealing with trustee Tat. 359 due warehouseman cannot be satisfied from goods of another stored by debtor, Ca. 128 1028 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. DEBTS— Continued. , i'-^<:i'; ;/()/ iOniicctcJ Zi'itli stonu/c not ccnrrcd hv 7i'an'liousciiiaii's lien : ". .Ky.329 zvhcn stored f^rotcrty liable for. of Inider S. C. 814 DECLARATION. by wareluniscnu-n, must he recorded l)efore Ihey can i.ssue re- "ceipts Ind. 238, la. 260. Kan. 294. Mich. 431, Minn. 480 statement of recordation of, must appear on hack of all ware- house receipts, la. 260 DEFAULT, def>ositary iniisl he put in. before recovery can be had La. 357 DEFENSE, none, in an action against warehouseman's sureties, that he was in an unlawful combination and had been suspended from the exchange ^'.v. 326 about only, to ncgotiatiable receipt in hands of third person is fraud, ' Ky. 336 DELAY, damages for, whal must be shozvn, La. 351 DELETERIOUS ODORS. See ODORS. DELIVERY. Sec also MISDELIVERY, PARTIAL DELIVERY. to whom will he made must appear on receipt. U. W. R. A. 1, Wis. 921 warehouseman must make, in absence of lawful excuse, U. W. R. A. 3, Wis. 922 when burden upon warehousemen to show excuse for failure to deliver on demand U. W. R. A. 4, Wis. 923 when warehousemen justified in delivering. U. W. R. A. 4, Wis. 923 need not be made until lien is satisfied,. . . .U. W. R. A. 10, Wis. 926 of goods without obtaining negotiable receipt, a crime, penalty. U. W. R. A. 18, Wis. 930 defined, U. W. R. A. 19, Wis. 930 of goods required upon proper presentation of warehouse re- ceipt, Ariz. 45. Ind. 230, Kan. 288. La. 344, 351, Mich. 418, 419, Mo. 525, Okla. 756, Wash. 909 stored grain must be delivered upon proper presentation of receipt, Kv. 318, Minn. 456, 466, 468, Okla. 744, S. D. 822, Wash. 903, Wis. 943 liability of warehouseman for failure to note partial delivery on negotiable receipt Wis. 923 title or interest of warehouseman in goods no excuse for failure to make, exceptions Wis. 924 without written consent of receipt holder prohibited, Ark. 47 negotiable receipt must be first surrendered and concelled,. Ark. 49 prima facie case of negligence shozvn by failure to m>ake,.N. Y. 654 conversion by failure to make, . .N. Y. 656 unqualified refusal to make, to true owner, constitutes con- version, A''- y- 636 of grain must be made within two hours after proper demand, 111. 172 of order on warehouseman for goods, passes title Calif. 83 to bailor in good faith excuses warehouseman, Calif. 68 INDEX. 1029 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. DELIVERY— Continued. page of wheat at warehouse to be weighed, held delivery to pur- chaser, Calif. 69 refusal to deliver on demand not conversion.. . . .■ Calif. 70 persistent refusals to deliver on demand held sufficient allega- tion of conversion. Calif. 70 to assignee of depositor's broker held to be a conversion,. .Calif. 70 improper refusal to make held to constitute conversion,. .Calif . 70 when receipt outstanding, queare, Calif. 82 to one holding unindorsed receipt issued in another's name. warehouseman liable Ark. 54, 55 set apart and marked by placards held sufficient — Tenn. 851 when negotiable receipt outstanding warehousemen liable,. Ohio, 737 to depositor after notice of real owner's claim, conversion, Texas, 862 to agent of bailee sufficient .S. C. 814 to wrong party, Texas, 862 to a warehouseman subject to control of buyer is not executed delivery, ■ d 707 facts stated and held not to consUtute, to warehousemen,. . .i^a. /»/ by warehousemen to one holding valid receipt, zvarehouscmen protected , g«- Zg^ warehousemen must account for his failure to make ra. n6 to one holding bill of sale from depositor, warehouseman pro- tected, .Pa. 793 warehousemen liable for if made -without return of negotiable receipt, .....R. I. 804 facts stated, warehousemen held not liable, although receipts not returned when goods delivered, Okla. 761 liability of warehousemen for failure to deliver grain on de- mand • • • • • ■ Mont. 581 of stored goods without owner's consent prohibited, urc. /o^ unauthorised bv bailor, constitutes conversion Ore. Ill must be authorized by depositor in spite of custom to contrary. Ore. 772 upon order of one not owner, warehousemen liable, Ore. 773 W'ithout order from ozuner, warehousemen liable for resulting damacies iJrc. / / j penalty for. of tobacco without order from owner Va. 884 .samplers of tobacco discharged from liability on ..Va. 885 insufficient evidence of. to bailee • H a.<;h. )\ 1 warehouseman not liable for failure to make after goods sold for storage charges • )^ 's- ^27 warehousemen's duty respecting, gram IVash. 914 failure to make, of tobacco on demand • V a. 8«4 of grain before inspection, prohibited Wis. 95« of grain bv carriers without inspection prohibited Wis 961 zvithnut return of receipt, when warehouseman protected.. . .111.223 bv 7i'arehouse receipt is real, not symbolic /'/• -|9 on sampler's is ticket improper, warehouseman liable .//. 212 warehouse receipt for grain void after Ind- 229 of goods without return of receipt • • / "<'■ 256 of warehouse receipt equivalent to. of property represented. .Ind. 250 without return of receipt, bona fide holder protected I'ld- 257 of cotton to be compressed, delivery to warehoiisoman \la. ^^ warehouseman not to make, when negotiable receipt outstand- inL^ liabilitv ^'^- ^^ 1030 INDEX. Keferences to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. DiiLlX liRY — Coiitiinicii. iwc.v. to any purlncr is a delivery to the firm, Ala. 28 consignee luis ontliority to receive goods and may waive com- t'liance wttli terms of delivery, Ala. 28 failure to make, when conversion presumed, Ala. 28 where delay of one day in, warehouseman not liable, ila. 29 to one claiming to be true owner, burden on ivarehousenian, Ala. 29 must be to bailor or assignee, Ala. 30 to receipt holder, zvlicu chattel mortgage recorded constitutes conversion, Ila. 30 carriers may deliver goods lo warehousemen, when, Ariz. 45 to any holder of warehouse receipt exonerates warehouseman from liability Ariz. 45 of warehouse receipt made to bearer, passes title, Ariz. 44 to one holding unindorsed receipt, warehouseman liable,. . .Ala. 39 complaint must allege refusal to deliver the goods on demand, Ala. 39 rules and regulations respecting, of grain, etc Ida. 160 damages against warehouseman for failure to make on proper demand Ida. 157 without return of bill of lading, carrier liable, Ga. 146 of goods where receipt lost compelled by court, Ga. 145 of goods pursuant to a judgment protects zvarehouseman. . .La. 365 must be made within reasonable time after demand, Kan. 303 pending replevin suit, warehouseman liable, Kan. 305 to be made only at warehouse, Kan. 303 of goods not impaired by subsequent assignment of bill of lading, " /ersons by bill of lading from denying receipt of goods Irk. 56 EVIDENCE. See also. PAROL EVIDENCE. warehouse receipt best, of title Ga. 145 statement in receipt that goods in good condition nut con- clusive .....: A^. F. 639 not receivable to vary bill of lading, in so far as same is a con- tract ". ". Mo. 561 receivable to z'ary an informal receipt for grain, Minn. 500 of fads lending to shmv negligence Ga. 135 showing a custom respecting ordinary care not conclusive but for the jury 1//;/;;. 489 of custom to insure stored goods proper Ga. 140 stalemenls by warehouseman when part of the res gestae, .Calif. 72 in case of forged receipt Calif. 83 as to custom affecting transfer of warehouse receipts, proper,. III. 220 1036 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. EVIDENCE— Co;!///n/r(/. _ pack receipt of teamster not binding as to condition of goods,. .III. 214 insufficient in an action for injury to apples in cold storage.. 111. 213 oitries on stubs not, of present ozvnersliip of zvarchouse re- ceipts Ky. 341 of particular acts to prove a custoni. is error Ky. 332 of custoni permitting commingling of grain, receivable la. 276 warehouse receipt, presumptive of ownership of goods la. 262 as to care of safe deposit bo.res ///. 203 warehouse receipt receivable in Ind. 234 best, to proi'e condition of eggs, Ind. 254 opinion of expert as to burning of cotton receivable, Ala. 30 warehouse receipt conclusive, against warehouseman Ida. 155 zvhen endorsement on bill of lading of condition of goods re- ceivable Ga. 147 letter offering a compromise settlement of claim not,. .. .Mass. 411 of danger near the warehouse excluded under the pleadings, receivable to shozv ozunersJiip of goods mentioned in bill of lading ' Miss. 510 receivable to shozv special value of lost goods N. Y. 658 shozving injury to goods and cost of repairs, A'^. Y. 658 received shozving burglary of zvarchouse .Mo. 556 warehouse receipt conclusive against warehouseman issuing same Miss. 504 of conditions printed on back of bill of lading Vt. 875 insufficiency of. delivery to bailee, Wash. 911 as to price of converted grain A''. D. 713 of newspaper advertisements respecting cold storage warehouse propr Minn. 493 receivable to s'-ozv purpose of one since deceased, in indorsing receipt Ca. 142 warehouseman's books best, of weight of stored cotton, Ga. 135 admissions by one Mni'ififf receivable against all Ga. 13? warehouse receipt best, of title to stored goods ...Ga. 128 as to care by zcarehousemau of his ozvn properly not receivable. Ala. 27 as to necessity for zvatchman receivable Ala. 35 showing into.rication of watchman, receivable Mass. 412 EXAMINATION, right of. bv owner mortgagee, etc.. of stored goods, penalty for refusal Mich. 423 of stored grain by any person interested tlicrem Minn. 458 EXCHANGE TICKET. carrier liable on. although "inspector's ticket" for same grain is outstanding Minn. 499 EXECUTION. See also, ATTACHMENT. against goods for which non negotiable receipt issued. U. W. R. A. 15. Wis. 928 will not lie aqain.d stored goods in action aqainst zvarchouse- man, '. " HI 218. 219 EXEMPLARY DAMAGES. See also. DAMAGES. when may be recovered for violation of warehouse laws. ..la. 261 necessarv to show zvilful violation of duties by warehousemen in order to recover la. 261 INDEX. 1037 References to laws are printed in roman; t^ose to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PAGE EXEMPTIONS. See WAREHOUSE RECEIPTS, Exemptions In. in bills of lading cannot excuse negligence, Conn. 98, La. 366 acceptance of bill of lading containing, implies assent thereto, Colo. 92 'at owner's risk" does not relieve of duty of ordinary care, Colo. 92 specified in warehouse receipt upheld, Calif. 68 in receipt against liability for leakage, upheld Calif. 78 in bills of lading-not valid against negligence, D. of C. 112 in bill of lading not valid against fraud, negligence or mis- feasance, Colo. 92 EXPERTS. to appraise goods where default on payment of debt where ware- house receipts pledged, La. 346, 347 EXPORTATION, grain to be re-inspected Wash. 901 EXPRESS COMPANIES, are common carriers, D. of C. 112 FACTORS, rights of, and of principal, Ga. 133 nature of relations with principals, La. 358 pledged by, owner protected, Ga. 131, La. 357 pledge of warehouse receipt by, owner protected. La. 348, 358, 359, 363 valid pledge of warclwnse receipt by, Ohio, IZl may validly pledge goods in their possession, N . Y. 651, 667 receipt issued in name of and pledged, owner protected,. . . .Ala. 37 when power of sale is not revocable, Ga. 131 must act strictly within owner's instructions, Ga. 130 receipts issued by, against own goods arc not warehouse receipts, III. 217 judgment superior to lien of, Ga. 133 haz'e lien if they have possession, actual or constructive,. .. .Ga. 133 pledgee has claim on only factor's interest in the goods,. . . .Ala. 39 must insure when custom to do so, f-a. 362 property in hands of still belongs to principal, La. 360 not responsible for illegality of investment of principal's funds, when, La. 359 attachment of goods in possession of, Texas, 861 may validly pledge goods to the extent of their interests,. .Tcnn. 846 when they may refuse to comply with order to sell, Tenn. 846 pledge of negotiable receipt by, valid, when, JVis. 973 in what cases deemed true owners Ohio. 718 lien for advances provided, Wis. 935 act relating to, N. Y. 620 if in possession deemed true owners, when N. Y. 620 and other agents to be regarded as owners Me. 368 FEES. See al.so, RATES OF STORAGE. STORAGE CHARGES, for inspection and weighing of grain prescribed, Kan. 280, Wash. 899 refusal of warehousemen to pay for inspection of grain, remedy, Wis. 961 for inspection, weighing, re-inspection, etc., of grain Mont. 574 1038 INDEX. Keferences to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. FEES — Continued. vac.v. {or wcigliiii.u (if .urain lo be fixed by grain and warehou.sc com- mission Wis. 950 for elevators and warehouses liandlinp; grain, prescribed,. . N. Y. (kM to be fixed by chief inspector of grain Mont. 574 for inspection of grain, prescribed Wis. 955 for inspection and weighing of grain, how fixed, Minn. 462, Wis. 956 to be paid State Auditor by cliief inspector Mont. 575 of secretary of state for issuing charter for cotton liulding associations S. C. 813 license, for cold storage business Ind. 246 annual, for inspection of cold storage warehouses Neb. 594 warehouse fees prescribed for hogshead of tobacco Mo. 54.3 division of. between samplers of tobacco prohibited, Va. 886 for sale of loose tobacco, Va. 886 when only half fees to be paid samplers of tobacco Va. 886 of samplers of tobacco prescribed Va. 885 for receiving, storing, inspection, etc., tobacco, prescribed, Tenn. 84.3 for storage of tobacco fixed Ohio, 726 of inspector of tobacco Ohio, 724 for inspection of tobacco provided by law Mo. 542 of wcighmastcr Til. 192 of Justice of Peace for sale of goods for charges,. Ore. 770, Wis. 932 FELONY, violation of warehouse laws declared Ida. 159 to bribe or attempt to bribe any officer under the grain inspection act, Mont. 576 fraudulent disposition of property by agents Mich. 429 for making false statement concerning stored cotton, . .Texas, 858 entering house to commit, penalty, Ind. 243 issuance of fraudulent receipt Ind. 2.32. Minn. 481, Okla. 744 40 FICTITIOUS NAME. bill of lading so issued not good in Jiaiids of one taking in- nocently ^'^• FICTITIOUS WAREHOUSE RECEIPTS. See WAREHOUSE RECEIPTS (Fraudulent). FIRE. See also, LOSS OF OR INJURY TO GOODS (by Fire). protection against in warehouse Kan. 301 FIRE ESCAPES, required for warehouses, when Mich. 428 required in warehouses; printed notice of locations of Kan. 302 FIREPROOF. See also, WARRANTY. warranty of, warehouseman liable, when, Ala. 34 a statement that warehouse was, held under the facts to be, a false representation, N. Y. 632 warehousemen liable for false advertisement claiming warehouse to be, A^. F. 662 advertising warehouse to be, effect, Texas, 865 FISCAL COURT, when may appoint inspector of grain and weigher, Ky. 320 INDEX. ^^^^ FISH ^^^^ 'provisions respecting marking of dates of storage and with- drawals on containers from cold storage, ■ ■ • • ■ ^a. /oh not included in cold storage Act, Uel. iU-, luo presence of required by railroad and warehouse com_m^ss^on, ^^^ when, ^ ■ ' FLAXSEED, , c a u ^ Mont 584 charge for storage, etc., of, fixed by law, • • " _ ^J" ^^ included in word grain, Mmn. 4/7, W is. y:)^ ^^^'^ warehouseman held liable for failure to remove goods,.. . .Okla. 761 FLOUR. ^ ,. Ill 212 exposure to odors, negligence, FOOD. See also, ARTICLES OF FOOD HUMAN FOOD. defined, Del. 101. N. J 605, N. Y. (^23 i^^- ^«^ sanitary requirements govermng places of storage ot Cant, oo articles not intended for to be so marked, • • • -^alit. oo unlawful to remove from cold storage without being stamped, ^^^ transfer of, in cold storage prohibited,... ^- ' ' V y^f' ^^^ cannot be returned to cold storage after being offered for^s^^le, ^^ powers and duties of Dairy and Food ^o'""^'^^'°"^''^J°"'^'4S' 487 ing inspection . etc., of, FOOD COMMISSIONER, v n 705 8 jurisdiction of respecting cold storage warehouse. N. D. 7U3-» FOOD. DRUG AND DAIRY COMMISSION, jurisdiction over cold storage warehouses, x\eb ^e^v^ to issue licenses for cold storage warehouses ^eb. 5»y FOREIGN CORPORATIONS. See also. CO!^PO^;^TIONS with branches within state to be 'doing business therein, ./V Y. 0// act taxing those doing business m the state constitutional.. N. C. 688 ^'^^^o^f^warehouse receipts, penalty ....Me, 371, Mass. 397 Va, 879 warehouseman not bound by forged receipt tci/j;. ».5 ^^^^of warehou.se receipt prescribed by law Ida. 155. Minn. 455 FRAUD. See also, WAREHOUSE RECEIPTS, Fraudulent.^ when it will not impair negotiation of receipt, U. VV. K. A., 16, Wis. y^v hogshead of tobacco fraudulently packed to be condemned. ^^^ action against seller of worthless receipt,. ..Ga. 145 - . .. i ..^;.j jij^i tola, y^ so marked con- ,., , /vv. 341 stilutes .- •, • .,; • ; , / ,;,;,: ; is about only defense to negotiable receipt m hands of llwd ^^^ in^iss'uancc of" wardiV.use ■rccdpi or biil of" lading." penalty. . . Md 375 tor not imputed to bank, i^lcss. ^14 action against seiier t>j wurimvo., .^^.^.y^,....- exemptions in bill of lading not valid against, issuance of duplicate warehouse receipts not s of bank direc agent taking receipt tn own name, owner protected, txa. 141 1040 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. 'FRIIE STORAGE/' pack stated ill receipt means only for a reasonable time ///. 219 FREIGHT, micallod for to be stored Colo. 85 storage cliLirges to be fixed for, S. C. 812 suit to subject, to payment of costs Obio, 721 " FREIGHT CHARGES, Paid by zvarehousenian not embraced in liis lien, M inn. 491 obligation upon consignor to pay, Mass. 413 deliz'cry of goods to consignee zvitluntt collecting, warehouse- men 'liable, .....N. Y. 634 zvarehousetnen may recover for, although goods injured by carriers, when, A'^. Y- 644 laws pertaining to, made applicable to terminal warehouses, Wash. 898 FROST PROOF, fads stated by warehousemen in regard to his warehouse, not conclusive, N. Y. 661 FULL-PAID STOCK, construed, A'^. Y. 675 FUNGIBLE GOODS. See also, COMMINGLED GOODS, COM- MINGLING OF GRAIN. may be commingled, when, U. W. R. A. 8, Wis. 925 defined, U. W. R. A. 19, Wis. 931 GAMBLING CONTRACT, warehouse receipts void if delivered in furtherance of, ....la. 275 GAMBLING DEBT, transfer of receipt for, valid Ala. 36 GAME, must be drawn before being cold stored Del. 104 GAME & FISH COMMISSIONER, right of, to examine warehouse, Mo. 549 GARNISHMENT. See also, ATTACHMENT, EXECUTION. warehouseman liable if he delivers goods to depositor after service of, Ga. 134 holder of receipt deemed garnishee, ; Pa. 780 in ease of safe deposit boxes, D. of C. 110, Wash. 912 GAUGER'S RECEIPTS, warehouse receipts laws applicable to Ind. 235 GENERAL ASSEMBLY, duty of, to pass laws to prevent issue of false and fraudulent warehouse receipts, 111. 166 to pass laws for inspection of grain 111. 167 GENERAL MANAGER, statements made by, binding on warehouseman, Ark. 51 GINNING CHARGES, collection of, by warehouse corporation is not ultra vires,. .Ga. 126 GOOD FAITH, required of warehousemen in handling grain Ind. 231 INDEX. ^ 1041 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PAGE GOODS. See also, ABANDONED GOODS, CHATTELS. COM- MINGLED GOODS, HAZARDOUS GOODS. PERISH- ABLE GOODS, UNCLAIMED GOODS, UNSALABLE PROPERTY. defined, U. W. R. A. 19, Ohio, 717, Wis. 931 when warehouseman owner it must so appear on the receipt, U. W. R. A. 2, Wis. 921 warehousemen liable for misdescription or non-existence of, U. W. R. A. 7, Wis. 924 description of, in receipt bv marks or labels sufficient, U. W. R. A. 7, Wis. 924 must be kept separate from other goods, exception, U. W. R. A. 8, Wis. 925 fungible goods may be commingled, when, U. W. R. A., 8, Wis. 925 care of, required of warehousemen, U. W. R. A. 8, Wis. 925 against what, warehouseman's lien may be enforced, U. W. R. A. 9, Wis. 925 not subject to attachment when negotiable receipt outstanding, U. W. R. A. 9, Wis. 925 sale of to satisfy warehousemen's lien....L'. W. R. A. 11, Wis. 926 in storage legally in owner's possession, Ga. 127 must be actually in store before issuance of receipt, Ark. 47. la. 261, Ky. 311. La. 350, Mo. 513, 514, N. J. 601, S. C. 806 must be actually received before issuance of bill of lading, ..Mo. 514 not to be removed until receipt surrendered Del. 101 bailee has right of possession and special right of property in, Ga. 122 where embezzled, warehouseman nia\< maintain action for, Calif. 78 if others substituted, subject to terms of receipt Fla. 114 unlawful disposition of stored, penalty, Ga. 124 may be retained until storage charges are paid Calif. 57 warehousemen precluded from selling or incumbering stored goods Ala. 22 sale of for storage charges, Ariz. 45 not to be removed without consent of person holding warehouse receipt N. J. 602 warrant to seize, procedure A''. Y. 629 when all, not actually in storage, receipt not void .V. Y. 662 owner entitled to, upon presentation of receipt and charges, Ariz. 43 not to be transferred without owner's consent Ariz. 43 stored nn leased (^remises, subject to distress for rent, although wnrelwuse receipt outstanding Pa. 790 represented bv different receipts, to lie kept separate, exceptions. Wis. 925 penalties for unauthorized removal of, by warehousemen,. .Wis. 930 imlawful sale of, by warehousemen, penalty.. Mont. 566 not to lie removed from warehouse without written consent of receipt holder Mo. 514 which warehouseman cannot account for, he zvill be held liable for Ln. 360 when not actually in store innocent holder of receipt protected, Ga. 143 false statements in warehouse receipt as to, vitiates .lame, zvhen, III. 222 66 1042 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. GOODS — Continued. pagk receipt of teamster, not binding as to condition of, ///. 214 warehousemen to keep register showing all, stored Ky. 313 represented by receipt not to be sold, encumbered or removed by warehouseman Ky. 312 GOVERA-MHNT, liability for storage charges when it detains goods under pure food act, jV. y. 044 GOVERNMENT BONDED WAREHOUSE, U. S. statutes Pertaining to. do not cliange rule requiring ordi- nary care, N. Y. 041 goods in for sale in U. S. cannot be transferred from original packages, Ky. 328 vendor's lien not lost by placing goods therein Mo. 551 sureties on bond released bv postponement of sale for duties, N. Y. 642 goods left in three years, deemed abandoned, A'^. Y. 642 // receipt falsely state goods in "free zvarchouse," warehousemen liable for government tax, N. Y. 642 one taking warehouse receipt after expiration of year when goods must be removed under the statute, not bona fide holder, N. Y. 641 GOVERNOR, authorized to rent tobacco warehouses, Md. 386 to appoint supervising inspector, assistant inspector, supervising weighmaster and assistant weighmasters, Mont. 573 to fix grain inspection places, Mont. 587 to appoint members of grain and warehouse commission for Superior, Wisconsin N. D. 701 railroad and warehouse commission to report to, Minn. 452 GRADES, schedule of to be posted in grain warehouses, S. D. 826 appeal from decision of inspector, respecting grain Wash. 901 when, fixed of grain Wash. 898 sales of grain upon those established by Minnesota, void, ..Wis. 959 provisions respecting, of grain, N. D. 708 standard, of wheat to be made, Ida. 151 of grain to be established by warehouse commissioner, ... .Mo. 533 board of commissioners to establish grades of grain Okla. 751 of grain to be established by railroad commissioner S. D. 823 GRAIN. See also, GRAIN OUT OF CONDITION. HEATING OF GR.A.IN, INSPECTION OF GRAIN, STATE GRAIN IN- SPECTION DEPARTMENT, maximum charges for storing, etc., fixed by statute, Minn. 458, Mo. 526. Mont. 584, N. Y. 631, Okla. 745 public warehousemen must receive all offered for storage, Kan. 285. Minn. 455. Mont. 578, Okla. 740 mixing of different grades prohibited, Ida. 156, 111. 165, Ky. 322, Mo. 521, Okla. 741 duty of warehouseman when out of condition or becoming so. Ind. 230, 111. 178, 179, Kan. 291, Ky. 321, Mo. 527, Okla. 746, Wis. 946 to be stored in separate bin when requested Ida. 153, Ind. 228 word to include flaxseed Minn. 477, Wis. 959 tampering with, prohibited, 111. 179, Ind. 231. Wis. 946 must be delivered on proper demand Mo. 525, Mont. 581 I INDEX. 1043 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. GRAIN — Continued. page must be delivered within two hours after proper demand 111. 172 must be delivered upon presentation of warehouse receipt, .Ky. 318 may be sold by samples regardless of grade, Mont. 577 not to be delivered unless inspected, Mo. 521 not to be received unless sufficient room for storing Mo. 522 may be run through machinery, when, Mo. 522 not to be received and mixed until inspected and graded, ..Mo. 522 grade and amount of, on hand, to be posted, Mo. 526 daily statement of amount on hand to be furnished Warehouse Commissioner Mo. 526 duties of Chief Inspector of. and of assistants Mo. 530, 31 appointment and duties of weighmaster Mo. 536 fees for weighmaster of, to be fixed by warehouse commis- sioner, Mo. 536 in public warehouses to be weighed at least once each year. Mo. 537 consignment of, to public warehouse declared temporary, . .Mo. 547 time allowed for removal from cars, _. Mo. 547 carriers prohibited from discrimination in shipment of Mo. 548 duties of Commissioner of Railroads respecting storage of, N. D. 689-691 storage in bulk declared a bailment N. D. 692 duties of carriers with respect to receipt, weighing and delivery of 111. 166 General Assembly to pass laws for inspection of, 111. 167 order of delivery of I"- 1' ' not to be shipped by water or rail until inspected, penalty. Wis. 965 sale of, under other inspection than that provided by law. pro- hibited, : Wis. 963 penalties for sale of without inspection, . . . ._■ W is. vo/ jurisdiction of grain and wareliouse commission ..Wis. 937-968 warehousemen must comply with act before receiving, for storage Ore. 763 duty of warehousemen to clear, etc.. when Okla. 741 allowance for dockage N- R- 708 provisions respecting grading of N. D 708 reports to commissioner of Agriculture by warehousemen and Q^j-l-Jgj-g IN . iJ. /Kjo grades to' be established by railroad commissioners S. D. 823 duties etc.. of Board of Railroad Commissioners respecting, S. D. 819-830 jurisdiction of railroad commissioner over Wash. 895 sale of stored, prohibited Minn. 456 pooling prohibited, penalty Minn. 469 general supervision over bv Railroad and Wareliouse Commis- ^jfjn ' Minn. 476 taxation of in store, how levied Mnin. 485 sale of. out of condition, when and how . .Kan. 292 when and how may be withheld from going into public ware- house '^'1"- 289 storage charges for, to be published semi annually Ky. 319 dutv of warehousemen cfincorning Ky. 317 what warehouse receipts for. must contain Kv. 317 removal of. when receipt outstanding . • ■ 'n/1- 239 appointment, compensation and duties of inspectors,. . .Ind. 232. 2,« warehouse receipts for, what to contain Tnd. .-?>S 1044 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. GRAl'N— Continued. page warchousomon to file statement for record Tnd. 237 failure to deliver proper documents fiir shipment of. penaltv, Md. 375 warehousemen may move for preservation 111. 179 grades of to be established III. 185 jurisdiction and duties of committee of appeals 111. 185 rules and regulations for grading of, etc :•••: ^^'^^ ^^^ t^ublic zvarchoitscincu prohibited from speculating in ///. 198 storage of warehouseman's own, prohibited, ///. 200 storage of. and to be kept "on the move," warehouseman not liable ; Lo. 359 act attempting to permit mixing of warehouseman's and cus- tomer's, unconstitutional ■ -JH- 225 right of Railroad and Warehouse Commission to inspect, is a legal right ^H- 200 GRAIN COMMISSION. See STATE GRAIN COMMISSION. GRAIN AND WAREHOUSE COMMISSION, creation, personnel, duties, etc., respecting grain, Wis. 937-968 GRAIN AND WAREHOUSE COMMISSIONER, appointment and compensation of N. D. 701 GRAIN GRADING COMMISSION, appointment, qualifications, duties and compensation of, Kan. 292, Mont. 586 appointment, duties, compensation and expenses of, Mont. 586 GRAIN OUT OF CONDITION, duty of warehousemen in case of, Ind. 230, 111. 178, 179, Kan. 291, Ky. 321, Mo. 527, Okla. 746, Wis. 946 GRAIN TESTOR, restrictions regarding use of, Wis. 966 GRAND JURY, . , , ^^ „^^ provisions of laws respecting tobacco shall be furnished,. .Va. 890 GRATUITOUS BAILMENT, bailee not responsible if uses care in selection of employees, when, Ca. 124 GROSS NEGLIGENCE. Sec also, NEGLIGENCE. facts stated showing, an part of carrier, 'j; ' if bailee without hire liable only in case of, Ala. 31 GUARANTY, organization of companies to guarantee warehouse receipts. Ky. 310 HAZARDOUS GOODS. See also, GOODS. method of sale to satisfy warehouseman's hen, U. W. R. A., 12, Wis. 927 HEARING, ., ^ . , ^ T^ iw on application for warehouse site on railroad right ot way,. Ida. loo HEATING OF GRAIN, warehousemen not liable for, when, 111. 177, Ind. 230, Kan. 291, Ky. 320, Mo. 527, Mont. 584, Wis. 946 HOGS, warehouse receipts for slaughtered, who may issue, Minn. 480 INDEX. 1045 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. HOGSHEADS, page size of, for tobacco prescribed, Md 384 HOLDER, defined, U. W. R. A. 19, Wis. 931 HOUSE BREAKING, defined, penalty, Ind. 244 HOUSEHOLD GOODS, measure of damages for injuries to, stated, Pa. 793 HUMAN FOOD, food articles not intended for, to be so marked, Calif. 65 destruction of food, from cold storage, which is unfit for, ..Ind 245 HUSBAND, delivery to, good defense, wJicn, iV. Y. 655 delivery to husband of bailor without return of receipt, bailee liable, A^. F. 635 IDAHO GRADE, of grain to be established, Ida. 150 IDENTITY, of stored property to be preserved, Wash. 908 IGNORANCE, of bailee, when known to bailor, effect, .V. C. 686 IMPLICATIONS, none of legality of a practice, from inaction of Railroad and Warehouse Commission, ///. 200 IMPOSTORS, persons assuming to act as inspector of grain, pcnalt}^ Mo. 532 INCUBATED EGGS, must be so labeled, Conn. 93 INDEBTEDNESS. See DEBT. IDENTIFICATION, of persons desiring to enter another's safe deposit box ncces- ^(^^V' ///. 202 INDICTMENT. See also, CRIMES, PENALTIES. for making storage charges higher than permitted by law,. .N. Y. 675 requisites of, charging unlazvful sale, bv warehouseman, Mo 561 word "granary" does not qualify word "warehouse.".'. Mo. 561 charging warehousemen with issuance of fraudulent receipt requisites, . Qre'. 778 for issuing fradulcnt receipt, provisions of act germane to its title, and constitutional, Ore. 779, I.MJIVIDUALS, not in warehouse business cannot issue warehouse receipts, Ind. 257 INDORSEMENT. .Sec also. TRANSFI'R. WAREUOrSE RE- CEIPTS, right of transferee to compel indorsement by transfer of ne- gotiable receipt, U. W. R. A. 15. Wis. 928 what one endorsing a warehouse receipt warrants, Mich. 418 1046 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. INDORSEMENT— C<'»//»»t-(/. i>.\r,|.: action iil^oii negotiable receipt \iuiiulaiiiabJc allluuiqli unindorsed. Ala. 38 ()/ receipt )iot necessary to pass title Ala. 40 effect of 'ivitliout c/uarantee" of xvareJionse receipt, Neb. 596 objection because of lack of, must be raised in trial of case not in appellate court Miss. 509 of warehouse receipt, passes title to property represented,. .Mo. 525 warehouse receipts transferable by Minn. 471 receipt zvithout, pledged, pledgee protected, ...Ga. 142 of receipt by one since deceased, evidence of purpose receivable, Ga. 142 indorsee of warehouse receipt estopped to deny title of one subsequently holding Pa. 797 of ivarehoHse receipt, effect HI. 221 and delivery of receipt, rights of purchaser ///. 182 valid pledge by unindorsed negotiable receipt .Ala. 38 of warehouse receipt passes title to the goods, which is good against creditors and purchasers, Ark. 55 zvarehouseman liable for delivery to one in possession of unin- dorsed receipt '^/«- J>^ of bills of lading, effect, Mich. 439, Neb. 597 INEVITABLE ACCIDENT. synonymous with "Act of God," Miss. 510 IN GOOD CONDITION, warehouseman bound by statement in receipt to that effect, N. Y. 633 statements in receipts that goods zvcrc, not binding, ///. 201 in teamster's receipt not binding , ///. 214 "IN GOOD FAITH," defined, U. W. R .A. 19, Wis. 931 "IN GOOD ORDER," refer only to external appearances la. 276, M^. 373 construed' and held not to estop plaintiff' Ida. 164 INHERITANCE TAX LAW, safe deposit boxes subject to inspection upon death of lessor, 111. 194, N. Y. 621 INJUNCTION. will not be granted at instance of Board of Trade to restrain alleged violation of grain law, Ka)i. 304 INJURIES, .warehouseniens' Uahility for, to employees, 111.224 INSOLVENCY, when transfer of receipt not a preference, Calif. 82 INSPECTION. See also, INSPECTION OF GRAIN, of foods in cold storage, Calif. 66, la. 269, La. 355, Neb. 591, N. D. 706, Pa. 783 right of where violations of law suspected, Minn. 485 of contents of freight cars by Dairy and Food Commissioner, Minn. 486, 487 of books of public warehousemen Ga. 120 of safe deposit boxes on death of lessor, III. 194 INDEX. 1047 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. INSPECTION— Co »fin«fd. page law requiring, of safe deposit boxes on death of lessor, con- stitutional, ^l^- 195 of scales, • ■ • Ida. 161 of public warehouses by railroad commissioner S. D. 822 board of commissioners to make, of public warehouses,. .Okla. 752 right of, of stored property and warehouseman's books and records 1 'l.- 166 failure of warehouseman to inspect casks not negligence.. .Calif . 78 INSPECTION OF GR.\IN. See also, GR.\IN, INSPECTION. RE- INSPECTION OF GRAIN. STATE GRAIN INSPEC- TION DEPARTMENT. General Assembly to pass laws for 111. 167 fees for, a lien thereon Ida. 161 by whom made Ida. 1^3 improper, misdemeanor, penalty Ida. 162 rights of owner if dissatisfied with 111. 181 misconduct of inspector, penalty Ill- 180 assuming to act as inspector, penalty 111. 180 expenses of, how paid Ill- 176 penalty for violation of act Iiy employees 111. 176 compensation of chief and deputy inspectors, how fixed — 111. 175 rules for government of inspectors 111. 175 oath and bond of chief and deputy inspectors of grain .111. 175 state grain inspection department, to have full charge of. ..Kan. 278 qualifications and duties of chief inspector Kan. 278 oath and bond of chief inspector Kan. 279 supervising inspectors, weighmasters and assistants Kan. 279 samples to be furnished public warehouses, Kan. 280 fees for, fixed Kan. 280. ^ is. 941 charge for a lien K^"- -^j reports to auditor of state j^'Ti- -^^| assistant inspectors, office force, etc K'l"- -81 penaltv for unlawful act by any inspector or emploj-ee, . .Kan. ^8Z by those not not authorized, a misdemeanor _ Kan. 282 under exclusive control of Chief Inspector and assistants.. .Kan. 28^ received at terminal warehouses required Mmn. 45/ when reinspection may be had K'l"- -^^ prosecutions for violations of act .- • • • j^an. -»4 statement of condition of warehouse must be furnished on request ^^f'\ 288 daily statements to chief inspector and statcmlents posted weekly {V^"- f£ scales to be tested ''"^"- -^^ appointment, duties, etc., of grain grading commission,. .. Kan. 292 when in contiguous cars on tracks ^-i"- -^-r weight to be furnished shipper on request Kan. -v^ appointment and duties of chief mspcctor ,'t,"i^j 17- appointment and duties of deputy mspectors n 11 ' 741 required before storing .• • ■ • ^'^L^- ^"l certificate of weighine and gradmg required >■ y^ "■^' oath. bond, and liability of assistant inspectors Oka. 74^ not to be mixed until inspected ^Jb\'^- ^^' in railroad cars same as in warelKUises. .......... ..•••'-^i-'a. /^^^ provisions respecting Mo. 518-19. 21. 22-38. \yash. 89.v90.^ under supervision of grain and warchnnsc commissioner. Wis. y,v-v()f< 1048 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. INSPECTION OF GRAIN— Co»//»;u(/. . page decision of chief inspector finul, exceptions, ^\\^- ^^^ otlier than tliat provided by law, pri>hil)ited Wis. 963 creation of "state grain inspection dei>artment," Mont. 571 certain laws relating to. repealed Mo. 516 commission may establish at points other than St. Panl, Min- neapolis and Duluth Minn. 466 grain in railroad cars to be inspected Minn. 464 fees for, and for weighing Minn. 462 appointment and duties of chief and deputy inspectors, Minn. 460. 461 < act providing for. hrld coiistifitfioiial ///. 167, 225 if tinlazvfnUy done stale must frpscnitc 7va». 304 lazv requiring inspection in Class B. inopcratiiw ///. 167,180 INSPECTION OF OIL, provisions respecting R. I. 800-802 INSPECTION OF SCALES. See also, SCALES. under State hay and grain commission Ida. 161 penalty for obstructing Ida. 162 by inspectors of weights and measures 111. 179 used by carriers Minn. 450 by w^eighmasters Kan. 289, Minn. 459 INSPECTION OF TOBACCO. See also, INSPECTORS OF TO- BACCO, TOBACCO, sale or shipment without inspection prohibited, when, . .Tenn. 844 when cities and towns may establish tobacco inspection Mo. 543 fraudulently packed hogsheads to be marked Mo. 542 to be personally made Tenn. 841 inspection fees prescribed by law Mo. 542 penalty for unauthorized inspection Mo. 542 hogshead to be restored to good shipping order Mo. 541 form of certificate Mo. 541 erasure or counterfeiting marks, etc., misdemeanor Tenn. 842 provisions governing Mo. 538-543, Tenn. 834-844 INSPECTOR'S CERTIFICATES, who entitled to receive same, Minn. 477 delivery of duplicate to buyer of grain, penalty Minn. 478 INSPECTORS OF GRAIN, qualifications of Minn. 462 removal of Minn. 462, Okla. 750 penalties for impersonating Minn. 463 penalties for misconduct Minn. 463 duties, powers and compensation of Wis. 951 charges against, procedure, Wash. 900 appointment, qualifications, compensation and removal of. Ky. 319, 320 appointment and compensation of Mont. 586 are not state officers Alont. 586 "legally appointed inspectors" defined ///. 201 INSPECTORS OF KEROSENE. duties of, R. I. 799 INSPECTORS OF PETROLEUM, appointment of R. I. 801 INDEX. 1049 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PAGE INSPECTORS OF TOBACCO. See also, INSPECTION OF TO- BACCO, TOBACCO. duties of Ohio. 725 duties of. assistants, etc Md. 376. Zll, 378. 379 prohibited from dealing in tobacco Mo. 539, Ohio, 725 must give bond AIo. 539, Ohio. 723 oath required of Mo. 540. Ohio. 723. Tenn. 839 who may be. oath Tenn. 839 appointment and qualifications of, Md. 376 issuance of false receipt, penalty Ohio, 727 must give receipt, Ohio, 727 to select and preserve samples Ohio. 726 keep records of inspection Ohio. 726 fees of Ohio, 724 penalty for taking legal fees Ohio, 725 for neglect of duty, penalty, Ohio. 725 appointment, qualifications, and duties of Mo. 538-39 to keep book showing marks of all lots inspected Mo. 539 appointment and qualifications of deputies Mo. 542 INSTRUCTIONS, extent to which bailee bound to follow bailo/s Fla. 116 INSURABLE INTERESTS. See also. INSURANCE. warehousemen have in stored goods Md. 390, 6". C. 816, Vt. 875 depositors have in grain commingled Ind. 255 compress companies may insure to full value Ark. 53 joint owners have in stored goods, III. 215 right of subrogation as affected by terms in lease of ware- housemen, S. C. 817 INSURANCE. See also. INSURABLE INTEREST. warehousemen to insure stored goods when requested, Mass. 394. N. D. 699. S. C. 805 agreement bv warhouscmcn to procure, liable upon default, Mo. 557, Ohio. 734, Tex. 867 contract by warehouseman to insure, not responsible if lie loses suit on policy, when, ///. 215 words, "All cotton stored zvith us fully insured" in a receipt held not to constitute contract of,. . .'. Ga. 138. 139 when contract to insure cjoods does not make warehousemen insurer, Tenn. 848. 849 warehousemen are not insurers, Okla. 760 warehousemen's own goods, pro rata distribution Fa. 893 when distributed pro rata among depositors ^/r>. 558 parol contract to obtain, pleading Ga. 140 right to proceeds when only some goods insured Ga. 139 must comply with contract to insure in customer's name. Ga. 137 remo'i'al and sale of uninjured rice by insurance companies, Ga. 137 in suit for, failure to aver in petition absence of other insur- ance, fatal ///. 216 Iionded public warehouseman must insure all stored goods, ..Ga. 119 duty of owner to notify bailee of Conn. 96 factors must effect, in accordance with custom La. 362 failure to make proof of loss within time stipulated, effect, Ky. ?>?,?> liability in case of double policies Md. 390 measure of damages where some of the cotton saved, Md. 390 1050 INDEX. References to laws aro printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. INSURANCE— CoH/mHrd. page custoin to i)isure of no rffcct xvhcrc directions to contrary,. .Ky. 333 notice of loss to eomf'any by warehouseman, ivhen conclusive upon owner Ky. 332 warehouse receit't construed and held to constitute a contract of. against fire Minn. 496 implied contract of. in warehouse receipt passes to assignee of. Minn. 498 miauthoriced terms by warehousemen, liability for Vt. 875 public tobacco warehouseman to publish list of poHcies \'a. 889 consignee to sell may validly cover by, Texas, 865 by tvarehousonen of his own property and that of others. Te.vas. 865 held an undertaking in connection with storage, Pa. 791 must be carried on cotton and broomcorn Okla. 757 warehousemen to insure goods on request, N. Y. 677 where depositor insures goods, no implication to reduce stor- age charges because of this A'^. Y. 643 obtained bv warehousemen, properly recoverable b\ owner. N. Y. 661 goods represented ])y pledged warehouse receipts must be cov- ered by, Mo. 545 INSURERS, warehousemen become when acting as common carriers Pa. 788 zvarehousemen are not, of the safety of their employees,. . .III. 224 INTENT. not necessary to show where grain wrongfully removed.. .Ida. 156 must be shown to sustain indictment of zvarehouseman for larceny, Minn. 501 INTENTION. of parties transferring receipt governs Cahf. 82 INTERSTATE COMMERCE COMMISSION,_ Railroad and Warehouse to prosecute citizens' petitions 1)e- fore, when Minn. 448 INTEREST, allowed where goods injured, from date of damages thereof, N. Y. 660 included in damages for conversion Mass. 411 demand loans on collateral, of $5,000 or more, may bear any. N. Y. 631 upon dameges in discretion of jury, Ky. 332 when conversion shown allowed from date of demand,. . .Ga. 136 INTERMEDLING, with another's goods is not conversion, Calif. 70 TXTERPLEADER, when warehousemen may compel adverse claimants to inter- plead, U. W. R. A. 6, Wis. 924 when warehousemen not entitled to call upon another to inter- plead, N. J. 608 when warehouseman cannot maintain a bill of, Ga. 127 at common law bailee cannot compel adverse claimants to inter- plead, Ala. 29 INDEX. 1051 References to laws are printed in roman : those to derisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. mTERPLEADER— Continued. page proper remedy where there are several claimants of goods,. N. Y. 641 facts avered in complaint held sufficient to bring case within requirements of see's 17 & 18, Uniform Warehouse Receipts Act, .V. Y. 6 adverse claimants to safety deposit boxes may be compelled to interplead under Uniform Warehouse Receipts Act .V. /. 609 INTERPRETATION. rule of, for Uniform \\'arehouse Receipts Act. U. W. R. A., 18, Wis. 930 INTERSTATE, cold storage goods for, shipment need not be marked Ind. 244 INTERVENOR, facts stated upon which judgment in favor of was rendered, Colo. 88 INTOXICATION, evidence showing, of watchman receivable Mass. 412 INVENTORY, of unclaimed goods to be sold for storage charges Mich. 426 INVOLUNTARY BAILEE, entitled to reasonable compensation, Neb. 594 ISSUE, in proceeding to acquire site for public warehouse, S. D. 830 JUDGMENT, form of, to enforce lien against goods, N. Y. 630 for storage charges not a bar to an action for conversion,.N . Y. 637 superior to lien of factor in possession, Ga. 133 delivery of goods pursuant to, warehouseman protected,. . . .La. 365 JURY, facts constituting negligence a question for, Ga. 126, ///. 202, Ky. 332, Minn. 493, A^. Y. 652, Pa. 790 Zi'hat constitutes ordinary care, a onrstion of fact for. Kan. 302, Mo. 550. A^. /. 609, A^. Y. 632, Ohio, 733 whether place of storage was safe a question for, Mass. 412 evidence showing a custom respecting ordinary care for, .Minn. 489 reasonableness of warehousemen's precautions against theft, a question for, A''. Y. 653 negligence a question for where goods injured in cold storage. Pa. 792 proper charge to, where goods injured in cold storage,. .Pa. 792 erroneous charge to. in respect to agreement as to temperature in cold storage ///• 213 whether transaction a bailment or sale, a question for.. .Ohio, 731 pro.rimate cause of loss, question for Colo. 90 who bona fide holder of receipt, a question for Neb. 597 to determine reasonableness of depositor's order to a ware- houseman Mass. 413 question for. in an action growing out of sale of goods for charges lo. 264, 273 improper instruction to reqarding qoods lost by act of 7var, Tenn. 848 to determine whether receipt transferred with fraudulent intent. Colo. 91 what constitutes possession of goods a question for A'^. Y. 666 1052 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. JURY — Continued. page ivhcthcr cticirgcs for prociiri>ig adi'aiircs constitutes usury, a question for, N. Y. 644 questions for where xvarehouse receipt ambiquous Va. 891 selection of in acquiring site for public warehouse S. D. 829 JUSTICE OF PEACE, fees of, for selling goods for storage, Ore. 770 KEROSENE. See, OIL. KEY, delivery of stored goods by transfer of, A^. Y. 634 retention of by safe deposit companay not proper care,. . .Calif . 72 KNOWLEDGE, presumed that public zvarehousemen cannot issue receipts to secure own debts Ind. 256 LABOR, hours of in tobacco warehouses Md. 378 LABORER, lien of, good against purchaser of receipt Ark. 50 LANDLORD, cannot maintain warehouseman's lien against lessee's goods. Miss. 505 lien of. good against purchaser of receipt, Ark. 50 LANDLORD AND TENANT, cotirt to determine if relation e.rists zvhere cold storage room rented " . . lVaj;h. 912 relation between safe deposit companv and lessor of boxes similar to ". A^. Y. 621, 639 LARCENY, theft of cotton by employee of warehouse constitutes, Ga. 149 to an indictment for, of warehouse receipts, defendant cannot plead zvant of aufhoritv in the one issuing the receipts, Minn. 500 by warehouseman, what constitutes Minn. 483 by warehouseman, intent must be shown Minn. 501 existence of innkeeper's lien will not justify conversion,. .Mich. 428 actual conversion and intent essential Mich. 428 conversion bv bailee constitutes, Mich. 428, N. H. 599, Ore. 771, S. D. 824 wrongful removal of stored goods by warehousemen Va. 879 warehousemen guilty of, stored grain Ore. 771 zvarehonse receipt may be subject of Ga. 146 embezzlement a sfccies of Calif. 84 improper refusal of puljlic warehousemen to deliver grain on demand, declared N. D. 693 one must be warehousemen to commit under .9rr. 2251. A'^. D. Code, 1905 N. D. 693 breaking open package, Conn. 94 LAW MERCHANT, when rules of povcrn in interpretation, U. W. R. A. 18. Wis. 930 warehouse receipts not governed by, Ala. 36 LEAF TOBACCO. See TOBACCO. INDEX. 1053 References to laws are printed in roman : those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. "LEGALLY APPOINTED INSPECTORS," page defined ///. 201 LEGAL PROCESS, warehousemen not liable where goods taken from them by, Pa. 781, S. C. 808 seizure of stored goods under, discharges bailee, Miss. 506 LEGAL RIGHT, right of Railroad and Warehouse Commission to inspect grain is, ///. 200 LETTER, offering to compromise claim against warehouseman not ad- missable in evidence, Mass. 411 LIABILITY, of warehousemen for failure of receipt to contain required terms, U. W. R. A. 2, Wis. 922 tobacco warehousemen may agree in receipts to a, for loss or injury from any cause, Ky. 323 zvarehousemoi liable where they fail to show loss occurred with- out their fault, La. 356 when that of carrier, as such, ceases, Ky. 328 commences with receipt of goods, Ky. 324 of public warehousemen cannot be changed by styling them- selves commission merchants, Ky. 326 attempting to limit in receipts prohibited 111. 172 cannot be limited in warehouse receipt, ///. 216 governed by special contract Mass. 407 exemption from by contract with bailor, Wash. 911 LICENSE, must be obtained to operate public warehouse, Ala. 20, Alaska, 985, Ida. 152. Kan. 284,Ky. 316.Mass.393, Minn. 454, 471, Mo. 511, 519. Mont. 577, N. D. 698. Okla. 739. Ore. 763, S. D. 820. Wash. 901, Wis. 940 penalty for doing public warehouse business without. 'Ala. 26, 111. 170, Mo. 512, 520, Okla. 740. Ore. 766. S. D. 821 required to operate cold storage warehouse, Calif. 64, Ind. 246, la. 267, Mass. 400, Neb. 589, N. Y. 624, N. D. 705, Pa. 783 required of proprietors of nil warehouses X?^- ' not failure of tobacco warehousemen to obtain, penalty Ohio, 728 required to conduct leaf toliacco commission warehouse,. .Ohio, 723 of grain warehousemen revoked upon failure to comply with ]aw Oi'C- 765, S. D. 831 weighmasters required to have Iflj'- |^0 cancellation of warehouseman's ' • «^ revoked for neglect of duty.. .............. •• • 11/ onn deprivation of, by Commission revinvahlc by the courts / . Z{)U jurisdiction of circuit court to grant and revoke / J. 169 warehouses of Class A, must procure • l"- 1"» of public warehousemen to be conspicuously posted, penalty, N. D. 690 revocation of. to public warehousemen .Ala. 20 notice by publication of warehou.scmcn's Mass. .■iJ4 act requiring one who only stored own gram to procure con- sfitutionai •. J{!""- 1% local warehouses required to obtain Minn. 405 1054 INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. LICENSE — Continued. tage for cold storage business revoked if warehouse not sanitary, la. 268 of grain warehousemen guilty of neglect to be revoked, Ky. 321 receipts issued bv zvarchouseman who did not liave, void when, Ky. 339 LIEN. See also, EQUITAHLE LIEN, LIEN OF WAREHOUSE- MEN, VENDOR'S LIEN, upon grain for inspection and weighing charges, Ida. 161, Mont. 575, Wis. 952 of consignee of goods, limitations Ohio, 718 of laborer, good against purchaser of warehouse receipt, . .Ark. 50 of pawnees^ Ga. 123 of vendor on stored goods not binding on innocent purchaser, Calif. 69 of landlord, good against purchaser of warehouse receipt, Ark. 50 special, of five days on agricultural products La. 353 enforcement of, when, and in what courts, N. Y. 629 on contents of safe deposit boxes N. Y. 620 of owner valid where there has been a wrongful pledge, La. 346 of vendor not applicable where receipt validly pledged, La. 346 of factors, brokers, etc., for advances Wis. 935 how, of factors, brokers, etc., enforced Wis. 935 stored cotton subject to, must appear on receipt Texas, 857 of vendor protected, although vendee pledge non-negotiable receipt, ; Mo. 551 not necessarily destroyed by pledgor being in possession,. .Mass. 408 cannot be given by bailee, good against owner, Me. 372 of factor inferior to judgment, Ga. 133 factor has, if in possession of the goods, Ga. 133 charge for inspection of grain a, thereon, Kan. 281 carriers have for charges, Colo. 87 LIEN OF WAREHOUSEMEN. See also. EQUITABLE LIEN, LIEN, VENDOR'S LIEN. what claims are included in U. W. R. A. 9, Wis. 926 against what property it may be enforced.. .U. W. R. A. 9. Wis. 926 does not preclude other remedies U. W. R. A. 10, Wis. 926 negotiable receipt must state charges for which lien is claimed, ^ U. W. R. A. 10. Wis. 926 how it may be lost, U. W. R. A. 10. Wis. 926 method of satisfaction of, by sale of goods, U. W. R. A. 11, Wis. 926 method of satisfaction of by sale where goods perishable or hazardous U. W. R. A. 12, Wis. 927 method of enforcing by sale not exclusive, U. W. R. A... 12, Wis. 9^7 after lawful sale to satisfy, warehousemen not laible, . U. W. R. A.. 13. Wis. 927 procedure in enforcing by sale, Calif 58, D. of C. 108, Fla. 113, Ga. 120, Kan. 297, Ky. 313, Me 370, Mass. 395, 396, Mich. 419, Minn. 482, 483, N. Y. 627, 628, 630, Ore. 767, Wis. 926 superior to chattel mortgage VVyo. 980 superior to chattel mortgage subsequent to storage Mich. 417 superior to chattel mortgage if same not re-filed A''. Y. 647 none where goods arc stored in violation of terms of a recorded chattel mortgage, N. Y. 10 INDEX. 1055 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. LIEN OF WAREHOUSEUEK— Continued. page under Uniform Warehouse Receipts Act, does not cover goods stored in fraud of owner's rights, A''. Y. 10 subordinate to rights of mortgagee under recorded chattel mortgage, Mo. 553, N. Y. 646 c casual bailee for hire is not entitled to a lien for storage charges, ^- ^- ? applies only to warehousemen, Neb. 59o need not be a "warehouseman/' Wyo. 982 what it embraces, Alaska, 983, Del. 99, Ind. 252, la. 262, Mich. 416, 417, Minn. 481, 482, N. C. 683, N. D. 700, Ore. 766, Tenn. 833, Wis. 925, Wyo. 978 possession essential to, Del. 106, Miss. 505, Neb. 595, N. H. 599 lost if goods parted with and not revived if possession re- gained, •■■J^^- 205 lost by a voluntary surrender of possession, ,'^i on? attachment of as warehouseman's property, quaere? ///. 205 when possession surrendered only lien allowable will be that agreed upon, yy 204 not lost by void sale of the goods for charges, ///• 204 prior to all charges, except taxes D- of C. 108 essentials of for safe keeping, improvement, protection, etc., of goods Okk. 759 waived by stating there are no charges due, Cahf. 75 is paramount, D. of C. Ill waived by holding goods for claim not covered by, Ark. 51 only covers indebtedness connected with the storage contract. Ark. 51 is limited to "a warehouseman," N. Y. 9 covers storage charges but not moneys advanced to pay freight, Minn. 491 none attaches if contrary to terms of contract, . . -Neb. 595 excessive demand by warehouseman does not extinguish hen, Mo. 553 tender of amount due, necessary to terminate, Mo. 553 arises where goods stored by sheriff, although attachment dis- solved, ^^/^- 552 highly favored by law, .■,•••■; • \¥"t 5nn entitled to .'satisfaction of, although guilty of conversion.. .N. J. 609 may be waived by special agreement, •.•••.•••• ■.■■\: "■ ^^^ covers charges accruing to the date of final trial m litigation, purchaser of goods, takes with notice of, and liable for charges, may hold goods for all legal demands for storage against tlw ^^ on undelivered 'portion of goods for storage on entire loJ,.N. Y. 646 where goods stored without owner's authority none exists,. N. Y. mb only those regularly engaged in warehouse business entitled to, ^^ assertion of will not sustain charge of wilful injury N. Y. 640 demand for more than contract price for storage constitutes ^^^ diTttncHon between 'coninion 'law and statutory jiens,...N. J. 610 docs not embrace charges again.st goods previously dchve^ed^ ^^^ 1056 INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. LIEN OF \V.\REHOUSEMEN— Co»//;/»,(/. page liiiuiloril has not. on lessee's goods Miss. 505 inust be ill lawful possession in order to maintain, U'yo. 981 if entitled to charges, lien attaches, U'yo. 982 proceedings to enforce, prescrilied Alaska, 983 statutory provisions not to aflfcct right of parties to contract, Alaska, 984 charges prescribed hy law Hawaii, 986 whether it exists or not, warehouseman has other legal reme- dies Wis. 926 not valid against bona fide purchaser, exceptions Wyo. 981 what goods it may be enforced against Wis. 925, 926 for general balance due, inust be in one transaction S". C. 815 protected where goods received from ostensible owner,. .Ohio, 719 general and not specific, Pa- 788 not valid zvhere goods stored by tortious bailee, Pa. 789 not waived by suit for amount due UtaJi, 871 niav be enforced action in equity, Utah, 871 against stored tobacco Tenn. 844 none on stored cotton under sec. 2682, code 1892 Mxss. 506 embraces all valid claims for storage, cartage, etc Mich. 436 includes advanced charges ; Mich. 417 on remainder of goods where there has been a partial delivery, Mich. 416 where partial delivery, on remaining goods for full amount of charges ". Mass. 406 for tax paid by him upon distilled spirits on storage, Md. 387 others cannot obtain such lien for storage charges Me. 372 not superior to rights of owner who has been wrongfully de- prived of possession, ^.V- 331 does not embrace other debts Ky. 329 when inferior to that of pledgee, Ky. 329 against unclaimed goods -la. 263 for all advances and expenses, Ga. 132 extent of at common law, Fla- lio does not embrace cost of removal of debris after a fire Ga. 137 not lost bv fraudulent issue of receipts /''• 204 although lost, owner of goods personally liable for storage charges JJ^- 204 superior to claim for advances and charges Ga. 133 embraces freight charges, when, Ariz. 46 LIMITATIONS. of liability in warehouse receipts prohibited La. 351, Okla. 756 of liabilitv in warehouse receipt to specified amount, valid, ' - N.Y. 665 of warehousemen's liability by contract Texas, 861, 862 warehousemen precluded from making, respecting grain, . .Okja. 744 respecting consignee's lien Ohio, 718 of liability to stated amount in receipt of express company, sustained R. I. 804 of liability in receipt issued from carrier's parcel room, not binding : ; '^■, ^- ^■^^ of liability bv finely printed conditions on receipt, not binding, • Wash. 915 upon loans by banks not applicable to pledged warehouse re- ceipts, when Mo. 545 INDEX. 1057 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. LIQUOR. See also, SPIRITS. page names of persons storing to be furnished the licensing authori- ties, Mass. 398 LOANS, from tobacco warehousemen upon promise to deal with, mis- demeanor if not fulfilled, Va. 891 warehouse companies may obtain, on their bonds La. 348 LOCAL WAREHOUSES, defined, Minn. 465 must procure licenses, Minn. 465 commission to prescribe times when they must be open, ..Minn. 466 must keep records of grain stored and receipts issued, . . . Minn. 468 must deliver grain on presentation of receipt Minn. 468 LOOSE TOBACCO, fees for sale of, Va. 886 LOSS OF, OR INJURY TO GOODS, In General, where grain commingled loss to be borne in proportion to the amounts deposited, ///. 208, La. 360, Ore. 773, 77 A measure of damages, Del. 107 evidence receivable to show special value of goods lost,..N. Y. 658 where goods are not returned on demand negligence is pre- sumed, Nev. 598 where goods returned damaged, prima facie case established, Wis. 969 prima facie case, Ga. 127, N. Y. 633 prima facie case, burden of proof, A'^. Y. 633 burden of proof on plaintiff, when, Ala. 28, ///. 212, 214 zvhen burden on bailee to show proper diligence, Ga. 126 by odors in cold storage warehousemen liable Wash. 913 through force, majeure, and acquisition of another, bailee's duty, Porto Rico. 991 zvhen statute of limitations begins to run, S. C. 814 must use reasonable care in hauling goods to warehouse,. .Ark. 52 destruction by mob, warehouseman not liable, when, Ark. 53 bailor overloading icharf, warehouseman not liable, Calif. 79 proximate cause question for jury, Colo. 90 warehouseman may maintain action against third person for. Conn. 94 valid claim for storage charges, up to date of accidental de- struction, ^'^- '^-' if due to negligence, warehousemen liable for. even though goods subsequently destroyed N- ^- 651 warehousemen liable for collapse of building, when .V. Y. 651 evidence shozving injury and cost of repairs, A'- Y. 658 althnuf/h receipt not issued, owner entitled to recover zvhcre goods destroyed ^ • ^- ""'* zvarehouseman need not show precise manner of, Mass. 403, 410. 411 /;_v overpowering force, what warehouseman must show in addition '. • La. 36\ if bv carrier prior to reaching warehouseman, latter not liaj,lc Mich. 417 law does not look beyond the proximate cause Mich. 437 67 1058 INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. LOSS OF, OR INjLiRY TO GOODS— C(>/(/;»».(/. page war eJw use man liable where property placed in different build- ing from that agreed upon, Mich. 437 By Accident, stipulation against zvill not excuse neyligenee, Ky. 332 destruetion by warehouseman not liable, zvhen, Ind. 248, 254 By Aet of War, warehousemen not liable for, Ten)t. 848 By Fire, warehousemen not liable if reasonable care be exercised, 111. 177, Ind. 230, Ky. 320, Mich. 423, Mo. 525 warehousemen Hable for, Kan. 290, Mont. 584 exemption against of no avail where negligence shown,. . .Ark. 54 exemptions in bill of lading not binding in case of negligence, N.^ C. 686 exemptions in bill of lading valid if for good consideration, Tenn. 852 exemption in receipt does not excuse dutv of ordinary care, ' Calif. 69 warehouseman not responsible in absence of negligence, Ala. 34, Ga. 135, Tc.ras. 864 burden of proof always on plaintiff to show negligence, Calif. 78, A^. Y. 652 warehousemen not liable unless negligent, Tenn. 847 public warehousemen not liable for, where reasonable care exercised, Okla. 746 burden of proof on plaintiff to show negligence,. ...Pa. 791 burden on warehouseman to show not due to his negligence, N. D. 714 question of negligence for jury, _. ^V. Y. 652 cotton placed near passing locomotives, negligence, Ark. 53 warehouseman liable if he fails to promptly gin cotton as agreed, .- •. • -Ala. 28 opinion of expert as to burning of cotton admissable in evi- dence, -j^^^- ^0 storage of powder is negligence, Colo. 90 of incendiary origin held negligence,. . ._ Calif. 78 warehouseman liable where custom to insure is shown. Ga. 140, 145, 148 insurance company right to remove and sell uninjured rice..Ga. 137 if it occurs after failure to obtain goods on proper demand, warehouseman liable, Minn. 493 after removal to another room contrary to agreement, ware- houseman not liable HI- 214 owners of commingled grain bear same pro rata, Ind. 252 warehouseman not liable in absence of negligence,... Kan. 306 warehouseman liable if goods stored in building other than one agreed upon • .Kan 306 owner may recover zvhere negligence of railroad shown,, .tatit. // failure to sell cotton within reasonable time not pro.vimatc cause of its loss, • .• ■^(^- >^^ evidence as to necessity for presence of zvatchman receivable, Ala. 35 warehousemen not liable if he uses due diligence La. 360 failure to make proof of loss within time stipulated, effect, Ky. . 333 notice of by warehouseman, when conclusive upon mvner...Ky. 332 INDEX. 1059 References to laws are printed in roman^ those to decisions in italics; the letters U. W. R. A. indicate references to fhe Uniform Warehouse Receipt Act. LOSS OF. OR INJURY TO GOODS— Continued. page the fact that government storekeepers have joint custodv i»(- material, ". .Ky. 330 contract against, between carrier and warehouseman not valid where negligence shown, Mo. 558 when insurance distributed pro rata, Mo. 558 evidence of danger in close proximity to warehouse excluded under the pleading, Mo. 558 where contract to insure, warehouseman liable, Mo. 557 exemption in receipt against, not applicable where negligence shown, Miss. 509 contract with carrier saving it harmless for, void, Minn. 503 after improper removal to another place of storage, ware- houseman liable, Minn. 493 removal from agreed place of storage, held proximate cause of loss, N. Y. 652. 653 diligence required of warehousemen in fighting fire, A'^. C. 684 evidence showing intoxication of watchman receivable,. . .Mass. 412 burden on plaintiff to show negligence. Mass. 411 no duty upon warehouseman's employees to remove goods where there was a fire at night, Mass. 408 posted notices concerning liability for Me. 372 tobacco warehousemen to carry policies of insurance against, Va. 887 where wheat to be ground and flour returned, transaction a bailment. Va. W2 not liable for. of stored grain \]'is. 946 insurance company subrogated to rights of assured,. .. .Texas, 864 facts stated showing gross negligence by carrier, A^. D. 714 insufficiency of declaration, Pa. 791 express company not liable when, ]Vest Va. 918 facts stated and defendents held negligent in storage of sul- phuric acid Ore. 774 duty of warehouseman to remove whisky regardless of pro- hibition in the statute Ky. 331 By Theft, when reputation of bailee not in question Va. 892 a depositary who sells the goods commits a theft La. 358 plaintiff has burden of establishing, A^ Y. 6.58 reasonableness of precautions taken, question for jury,. . . .N. Y. 653 facts stated and held, warehousemen exercised reasonable pre- caution, A'^. Y. 658 warehouseman held liable for. of large number of barrels of pork Ky. 325 By Water, warehousemen held liable for failure to remove goods Okla. 761 negligence, a question for the jury, evidence Pa. 790 tobacco warehousemen to carry open policies of insurance auainst loss by fire and water Va. 887 rising tide, facts stated, warehouseman held liable Me. 389 Missing Goods, zcarehousemen must account for Pq J^-j measure of damages where subsequently found A''. Y. 659 negligence presumed ///. 214 7.0.9.9 OF WEIGHT. burden of proof in case of, Ga. 136 1060 INDEX. References to laws are printed in roman ;^ those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. T.OST. VAGK tobacco certificates, procedure Md. 382 LOUISIANA STATE HOARD Oi- HEALTH. See, STATE BOARD OF HEALTH. MALFEASANCE. chief inspector or assistant inspector of ^''^'i'''. I>enalty Mo. 531 MANUFACTURED TOBACCO. See TOBACCO. MANUFACTURERS OF TOBACCO. laws not applicable to Va. 888 MANUFACTURING COMPANIES. warcJwusc receipts issued by. rnid Ky. 341 cauiiof act as warehousemen, Ind. 250, 256 MARKED, defined Pa. 783 MARKET VALUE, of goods pledged by warehouse receipt must exceed amount bor- rowed by 20%, Mo. 545 MARKS. See also, BRANDS AND MARKS. hogsheads of tobacco to be marked by inspectors Md. 379 food articles not intended for human consumption to be so marked, Calif. 65 MAXIAIUM CHARGES, for storing, etc., of grain, fixed bv law. 111. 176, Kan. 290, Minn. 458, Mo. 526. N. Y. 631. N. D. 693, S. C. 812, Wis. 945 Wis. 945 for storage of cotton prescribed, S. C. 813 for storing, etc., cotton and broomcorn, prescribed Okla. 757 for storing, etc.. to be printed on warehouse receipts Minn. 466 for selling leaf tobacco prescribed N. C. 681, S. C. 810 charges for storage of freight to be fixed liy Railroad Commis- sion, S. C. 812 MEASURE or DAMAGES. where goods injured in storage, Mo.. 557, A^. C. 687, Ohla. 761. Wash. 915 where grain damaged while stored Texas. 865 of household goods stated Pa. 793 where goods injured in cold storage, ///. 213 for conversion of wheat ///. 215 value of goods converted ///. 21 1 where taking of goods was not tortuous, ///. 215 when conversion wilful and when not, rule stated, Minn. 495 value at time of conversion is, _ Ky. 332 market value of goods when converted and interest, Mass. 411 stated where goods converted, R. I. 803 interest allowed from date of demand Ga. 136, A^. Y. 660 erroneous instruction, eggs injured in cold storage Ind. 255 value of goods on date of demand is, Ind. 255 INDEX. 1061 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. MEASURE OF DAMAGES— Continued. page zvlue of cotton at time of loss and interest, Miss. 5U8 of bonds stolen from a bank's vault, ...Md. ^yu in action against insurance company where some of the cotton had been saved, •,•;••;•:, r v>i rules stated in actions by owner and by bailee, Lr«- j-^ when goods lost or destroyed 'y'- :i^^ where cotton zvrongfully sold • • • ■ • • • • •.• • ■ • ••/'«• ^o^ where corn delivered of inferior quality to that deposited,. Kan. 60/ purchase price does not always govern, J/. £/ °^" for broken crockery stated ,•••/•••• v y ^,rq where lost goods are subsequently found,. • ; ' ■,■ value of goods at time of contract, less then accrued charges. ^^^ where bill of lading contains exemptions pertaining to, Tenn. 853 MILLING BUSINESS, ,,. , , ,^,. „ ,, provisions respecting public warehousemen not applicable to. ^^^ section 2251, A^. D. Code 1905. not applicable to those engaged ^^^ in, MINGLING OF GRAIN. See, COMMINGLING OF GRAIN. MINNEAPOLIS GRAIN INSPECTION BOARD, bonds of members, to establish grades, duties and salaries ot, Almn. 459. 4oU MINNESOTA GRADES. to be established bv Minneapolis and Duluth grain inspection boards ^^'""- ^^^ MISCONDUCT, , ^,, .jj. of inspector of grain, penalty ■ •. \V- aTt. of inspectors of grain or weighmasters. penalties Minn. 40J MISDELIVERY. See also, DELIVERY. . ^^, liability for, U. W. R. A. 4, Wis. 923 constitutes conversion, .III. 212, Ky. 331. ^- Y- 655 warehouseman not liable where he delivers to one holding bill of lading, ■■M<^- 554 when warehouseman liable for, i\iass. 4iu not liable for where mistake due to former ozvncr of warehouse, Mass. 409 to one having unindorsed bill of lading • • ■^'^^jf- '.^ warehouseman liable for, as upon a wrongful conversion.. .III. ZIZ MISDEMEANOR, violation of warehouse laws declared to be. Mich. 419, Mo. 529. N. J. 603. 604, N. D. 693, 700, 709 for warehouseman to violate laws respecting deleterious food. Minn. 488 violation of cold storage laws declared to be N. Y. 627 to transact business of public warehousemen without license, and bond Mont. 578 use of incorrect scales declared to be Mont. 582, N. Mex. 61.3 for counterfeiting marks on hogsheads of tobacco Tenn. 843 to tamper with tobacco samples ■ Md. 381 inspection of grain bv one not authorized Kan. 282 neglect of duty by chief inspector of grain, penalty Mont. 576 1062 INDEX. Ucferences to laws are printed in roman : those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. MISDEMEANOR— Co»//;/».(/. page improper inspection of grain or scales Ida. 162 overcliarging for storage, etc., of grain, declared to l)e N. Y. 631 to alter or destroy, etc., warehouse receipt, Mich. 433 for warehousemen to conceal goods from constable or sheriff. Pa. 786 to borrow money from tobacco warehousemen, and not fulfill promise to sell through said warehousemen Va. 891 to refuse owner permission to make examination of stored goods Mich 423 MISDESCRIPTION, warehousemen's liability for U. W. R. A. 7, Wis. 924 MISFEASANCE, exemptions in bill of lading not valid against, Colo. 92 MISSING GOODS. See LOSS OR INJURY TO GOODS, Miss- ing Goods. MISTAKES. when will not impair negotiation of receipt. U. W. R. A., 16, Wis. 929 warehousemen may maintain action for goods delivered by, Pa. 781 warehousemen liable for if due to lack of ordinary precaution, ' Ky. 331 where receipt is issued through, only defoises for warehouse- man against bona fide holder stated, Miss. 509 warhousemen liable for, although innocently made A''. F. 656 MIXING. See COMMINGLING OF GRAIN. NAMES, of persons storing liquor to be furnished licensing authorities, Mass. 398 of owner to be on hogsheads of tobacco Md. 385 goods listed in zvrong name in zvarehonse. xvhcn warehouseman not liable for misdelivery, Mass. 409 NATIONAL BANKS, authorized to hold warehouse receipts as collateral Ohio, 7Z7 NEGLECT, penalty for on part of grain warehousemen, Ky. 321 penalties for. of duty by inspector of grain Ky. 322, Wis. 952 NEGLIGENCE. See also, GROSS NEGLIGENCE. defined, Fla. 117, R. I. 803 burden of proof on plaintiff. Ark. 50, Calif, 78, Ky. 332, Mass. 411, Mo. 555, N. Y. 652, 653, Pa. 793, Tex. 865 burden of proof on plaintiff throughout, N. Y. 654 when warehouseman has burden of proving loss not due to, Calif.' 79, Del. 107, Minn. 494, exemptions in warehouse receipt do not excuse. Ark. 54, Minn. 494, A^. Y. 672, Vt. 874 exemptions in receipt do not embrace damages resulting from,. Miss. 509 although loss result from, stipulation in bill of lading limiting value binding, Calif. 83 INDEX. 1063 References to laws are printed in romanj^ those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. NEGLIGENCE— Con^inMed. page stipulations in bills of lading cannot excuse, La. 366 limitations in receipt of express company sustained, although negligence shown, ■^- L 804 exemptions in bills of lading not valid against, Colo. 92. Conn. 98, D. of C. 112, Mc. Z7Z, Mass. 414 misdelivery constitutes, ^'/- 212 warehousemen liable for losses resulting from, N. H. 599, N. C. 683, 686 warehousemen liable for injury from, although goods subse- quently destroyed without his fault, N. Y. 651 warehouseman liable only in case of Colo. 86 warehousemen not liable in absence of....Fla. 116, Ga. 135, Wis. 971 cannot be presumed but must be affirmatively shown Fla. 117 how prima facie cases of, established, ...Miss. 507. Mo. 557 prima facie case made where failure to deliver shown, ^ Nev. 598, N. Y. 654 prima facie case of, burden of proof, Lnd- 254 not presumed from injury alone, facts stated Md- 389 presumption of where goods damaged or not returned.. ._. .Md. 389 when statement that warehouseman has not goods in his pos- session amounts to j]''-'' 070 when its existence presumed " '-^- ^^^ presumed where goods arc missing,. .. ... • ... ... • ■ • • •/''• 214 a question for the jury Ky. 332. Mtnn. 493. .V. Y. 652, Pa. 790 question of law for court's determination. • -Ga. 126 may be averred in general terms, Porto Rico, 99- alleged in declaration and simply non delivery proved, verdict directed for defendant, ;•••;■• , , "^ " where not alleged in declaration but demand and refusal hur- den of proof on warehouseman, Ar v "^Ia. zvhat the defendant must prove • ■'V- r- oM insufficient allegations in complaint charging loss of compress receipts bv warehousemen • • • • • ■ • • • • •/'?■ ^^ presumed from collapse of warehouse N. Y. 653, IVasli. ni in care of sulphuric acid, facts stated, -Ore. //4 storage of powder is • • • • ■ • • • ■ ' ■>m"i ' 747 public warehousemen liable on bond for, Mo. 528. CJkla. /^/ cotton placed near passing locomotives... -Ark. W of railroad for fire from sparks from engines, X.alif. // of carrier in permitting engine near stored cotton / exa.j. »M in case of safe deposit boxes •. ,■ • • • ■ ■ -J '■ ^ contract between ivarehouseman and carrier against loss by fire, not binding in case of .--Mo. bbiS contract between warehouseman and earner saving f'j^'"^'' harmless aqainst. sustained, .•• ..I^. U./v* allowinq drippings from brine pipes to fall on stored cheese is. Minn. iVJ-i exposure to deleterious odors and high temperature ^""-^'j'^'^^'jj- ^^y improper ventilation of cold air in cold .storage rn 362 exhosurc to odors is. when ;'--'J '■' " u " 7i'hal degree of mu.st he shown ivhere goods in,ured m cn^d ^^^ storage .','"•' i'/"r Vrli ?fi6 injurv to warehouses on carrier s riRht of vvay. ;•,•!"''• ^"" fads' slated and held tvarehousemen exerci.^ed reasonable pre- cautions against theft A'. K. ft5« 1064 INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. NEGLIGENCE— CoH/f»«(?d. page loss by fire, proximate cause, N. C. 684 misdelivery constitutes coinrrsioii .V. Y. 655 zvliat it may consist of, Ga. 135 instruction to jury in case of Ga. 136 'zcarcliouscman entitled to cliarges up to time of injury to the goods ". . . .Del. 106 bailee must show his, did not cause the loss Ga 123 fire of an incendiary origin held to be, Calif. 78 not, for failure of pledgee to see that surrendered receipts are cancelled. Ky. 338 facts upon which charge of, based for jury ///. 202 must be shown in case of loss by accident to hold tvarchousc- man liable, Jnd. 254 of carrier employed by owner of goods cannot be imputed to latter " ". ." Miss. 508 directors of warehouse corporation liable for, .Mont. 587 liability of warehousemen in case of 111. 178 bank liable for loss of jewelry due to Okla. 760 plaintiff must shoiv. to have been proximate cause of loss,.Tenn. 847 liability of zvarchouscmen for, resulting in injuries to persons, Texas, 870 proprietor of cotton gin liable for 5". C. 816 injury to one visiting warehouse Calif. 84 failure to inspect stored goods is not Calif. 78 on part of bailor, warehouseman not liable Calif. 79 must be shown in order to hold zvarchnuscman liable,. .. .Calif . 78 NEGOTIABILITY. See, WAREHOUSE RECEIPTS, Nego- tiability. NEGOTIABLE INSTRUMENT, requisites of, Wis. 920 warehouse receipts are not, ///. 219, 220 NESTING, of hogsheads of tobacco prohibited, penalty,. .. .Tenn. 843, Va. 888 NOTICE. See also, ACTUAL NOTICE. of sale to satisfy warehouseman's lien,..U. W. R. A. 11, Wis. 926 reasonable, to be given of sale of perishable or hazardous goods, U. W. R. A. 12, Wis. 927 of sale of goods for storage charges, Del. 99, D. of C. 108, Ga. 120, Hawaii. 986, Kan. 297, Ky. 313, Me. 370, Mass. 396, Mich. 420, Minn. 482. Miss. 504. Mo. 513, Mont. 564, 565, N. Y. 627. N. C. 679. 683, Ohio, 720, Ore. 767, S. C. 808, 809, Tenn. 835, Wyo. 979 of sale of perishable goods for charges, Colo. 87, Fla. 113, la. 264, Mass. 395 of sale of unclaimed or abandoned goods for charges, Colo. 85, Fla. 113, la. 263, Mich. 426, Mo. 545, Ore. 768 dispensing with, of sale for charges, when Del. 99 sale for storage charges, without, constitutes conversion.. .Ind. 252 failure to give, of sale for storage charges, renders same void, N. Y. 636 of sale for charges, requirements with the law as to, la. 263, 273 INDEX. 1065 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. NOTICE — Continued. page when grain becoming out of condition, 111. 178, Ind. 230, Kan. 291, 292, Ky. 321, Mo. 527, Mont. 584, Okla. 746 requirements as to when cold storage goods offered for sale, Calif. 67 that goods have been cold stored required la. 270 to purchasers of food, that goods are cold stored, Neb. 593 to be given state comptroller of death of lessor of safe deposit box, N. Y. 621, 22 to be given where rent for safe deposit boxes in default,. .N. Y. 617 to be given when rent of safe deposit box not paid, Mo. 543 of receipt of goods b}' warehouseman to be given owner, when, Colo. 85 where goods sold upon which advances have been made, ..Colo. 86 to be given owner on receipt of freight, Ohio, 719 of l^ledge of irregular receipt must be given to warehousemen. Pa. 789 of sale of unclaimed tobacco, Va. 890 of sale for charges to be given assignee of goods, when, D. of C. 108 in absence of proper, warehouseman guilty of conversion on sale of goods for charges, Calif. 74 of clear character necessary to defeat bill of lading, Ga. 148 special contract regarding notice of sale governs, when Ga. 132 of appeals to committee of appeals on grading of grain 111. 185 rates of storage cannot be changed by, subsequent to date of storage, Ga. 132 posted, that bailee will not be liable for loss by fire, Me. 372 whether proper, given when goods sold for charges, question for jury, la. 264, 273 of sale of goods pledged by warehouse receipt, La. 346, 347 to insurance company of loss by warehouseman, when bind- ing on owner, Ky. 332 sale of whisky at less than cost not, of fraud Ky. 336 required of location of fire escapes in warehouses. Kan. 302 by publication of warehousemen's licenses, Mass. 394 of receipt of goods by warehousemen to be given owner, when, Mich. 425 to owner wlien stored goods are attached Mich. 422 to respondent in proceedings before railroad and warehouse commission . .Minn. 442 requirement of to carriers, zvithin thirty davs after, of injury to goods, void ....•: A^. C. 687 warehousemen must give depositor of replevin suit, A'^. Y. 650 of sale of freight to pay storage charges Ala. 24 recorded mortgage constitutes Ala. 30 must he reasonable, of sale by pledgee, III. 211 NUMBER, must appear on receipt U. \V. R. A. 1, Wis. 921 all warehouse receipts to be consecutively numbered, 111. 171, Ind. 228, Kan. 286, Kv. 314, La. 350. Okla. 742, 755, " .S. D. 821, Tex. 856, Wis. 921, 941 NUTS, not included in cold storage act Del. 102, 105 1066 INDEX. Kfferciices to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. OATH. I'M-.v. of cliief inspector of e;rain, 111. 175. Kan. 279, Mo. 530. Mont. 57.1 Okla. 749. VVi.s. 950 to he taken by warehouseman's weigiier Calif. 62 of inspector of tobacco Mo. 540, Oliio, 723. Tcnn. 839 required of weighers of tobacco N. C. 681 of grain and warehouse commissioners Wis. 938 of committee of appeals 111. IS'S of Warehouse Commissioner Mo. 518 of members of railroad and w^arehouse commission. 111. 187, Minn. 4.39 OCCUPATIONS. legislature may classify, and Um'fully la.v the same Ga. 149 ODORS. injiirx of goods in cold storacje hv. Tvarehoiisemen lial^le. III. 212; Ind. 253, Mich. 437, IVash. 913 exl^osure of flour to. negligence ///. 212 when cold storage warehouseman not lial'le for injury caused by '. Kan. 307 OFFICERS, of safe deposit comjianies. how selected N. \ . 616 OIL. how to be kept for sale and storage R. 1. 800 laws relating to inspection of. not applicable to oil for ex- plosives, etc ; R- I- ^0^ keepins: of inflammable fluid.s not inspected, prohibited,. .R. I. 799 same grades may be mixed in oil warehouses Kv. 314 must be actuTillv in store to represent warehouse receipts i*;- sued " Kv. 315 OIL WAREHOUSES. ,1, ,k requirements governing K-y. J 14. .113 storage of cotton seed oil. requirements upon warehousemen, Ky. 314 provisions of law made applicable to Ky. 3Lt OPINION. statement by warehousemen concerning frost-proof warehouse held merely exf^ressinn of N. Y. 655 OPTION TO BUY. that the zvarehousonan has. of stored 7, Okla. 760, Texas, 861, Vt. 874 degree of required of warehousemen, Miss. 505 warehousemen bound to the exercise of, Calif. 57, Ga. 122, 123, 111. 177, Ind. 330, Mont. 564, N. D. 702, S. p. 830, U. W. R. A.. 8. Wis. 925 receipt must not contain any provision for lower degree of care, U. W. R. A. 2, Wis. 922 question of fact for the jury, Kan. 302, N. J. 609, N. Y. 632 question for both court and jury, Ohio, 733 when a question for the jury and when for the court Mo. 550 correct instruction to jury in regard to, ///. 197, Mass. 409 "at owner's risk" in receipt does not relieve from require- ment of, . Colo. 92 removal of goods to another place of storage not violative of, Conn. 95, 96 required where safe deposit boxes rented, Calif. 72 facts stated showing lack of, on pari of safe deposit company. Calif. 72 of safe deposit boxes, in absence of special agreement, ///. 203 facts shown, held lack of with safe deposit boxes,. ///. 202 rule applies to drayage when storage principal object ///. 199 rule covers approaches to warehouses, ///. 198 want of, does not create liabililv for loss from other causes. Ala. 27 care bestowed by warehouseman on his own property not criterion, t.'^- 27 insufficient showing as to, during civil war, Lci. 361 duty when cotton thrown from warehouse by military authori- (ff,^ Ga. 136 advertising that warehouse fireproof and placing goods in one not fireproof, is not exercise of,. Texas. 865 proprietor of cotton gin must exercise .S. C. 816 <;urriiuiidina conditions and circunustances must be considered. Ohio, 733 warehousemen cannot l)y receipt stipulate for less than. ..Wis. 922 affirmative showing of, will exonerate warehouseman Mass. 409 liability of warehousemen coextensive with posse. ^ when, of stored goods must appear on receipt. L. VV. K. A., 2. Wis. 921 presumption of, from possession not applicable to warehouse- men, etc., ; •.•••• \t'^3' r^l effect of change in. of warehouse, durmg storage period.. .A. r. Mh PACKAGES, . warehousemen not required to open ' «■ /oo PACKING HOUSE, r- no tax on all agents of. in the state valid Lr«- ^'^^ PAROL EVIDENCE. Sec also. EVIDENCE. not receivable to varv warehouse receipt, III 223 Ind. 2S6. la. 276. Kan. 307, Minn. 500. .V. Y. 664, _ Ore. 777. Tenn. 850 receivable to explain terms of warehouse receipt, Ga. 140, 145 receivable where warehouse receipt ambiguous Va. 893 admissable in regard to features not covered by ivritten storage contract Ark. 51 admissible to show real contract of storage,. .. .Ore^.^ 777, ^Vash. 915 receivable to show meaning of term "cold storage." N. Y. 67 Z receivable to explain storage warrants A 777 receivable to vary bill of lading _ .Ore. 77/ separate agreement in addition to bill of lading may be es- tablished, bv .• • -f.^- •^^- that goods mentioned in bill of lading were never received by carrier is admissable v^^- •^^- reccivable to 7'arv or contradict bill of lading in so far a.^ if is a receipt ". J""^- 258. Me. 373 not receivable to varv bill of lading, exception... ..la. 277. Mo. 561 not receivable to show time of delivery under bill of lading. Ga. 148 PARTI.M. DELIVERY. Sec also. DELIVERY, must be indorsed on negotiable receipts. Ala. 23, U. W. R. A.. 5. Wis. 923 new receipts to be issued where there is. of grain Ind. 229 to be indorsed on order bills of lading Minn. 474 lien on remainder of goods for full storage charges Midi. 416 lien on remainder for full storage charges, .Mass. 406 lOrO INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PARTNERS, PAGE warehouseman doing business under trade name liable as... I II. 198 PENALTIES. Sec also, CRIMES, DAMAGES. false statement on warehouse receipt,. ... U. W. R. A. 17, Wis. 929 issuance of receipt wlicn goods not received, U. W. K. A., 17, Wis. 929 failure to nicntion on receipt warehouseman's ownership of goods, U. W. R. A. 17, Wis. 930 negotiation of negotiable receipt when one has not title, U. W. R. A. 18, Wis. 930 delivery of goods without obtaining negotiable receipt, U. W. R. A. 18, Wis. 930 issuance, etc., of false or fraudulent warehouse receipt, Ala. 25. Alaska, 984, 111. 182. 193, Ind. 232, Me. 371, Mass. 397, Alich. 429, Minn. 481, 484, Mo. 525, Mont. 566, N. D. 702, Ohio, 717, 727, Okla. 744, 758, Ore. 771, Pa. 779, Va. 879 for forgery of warehouse receipt, Mass. 397 for wrongful removal of stored goods or forgerv of receipt, Va. 879 for fraudulent sale, negotiation or pledge of warehouse receipts, Va. 890 for alteration or destruction of warehouse receipt, Ind. 238, la. 265, Mich. 433, Wis. 930 conducting warehouse business without a license, Ala. 26, Alaska, 985, Ida. 153, Kan. 285. Ky. 316, La. 349, Minn. 471, Mo. 512, 520, Ohio, 728, Okla. 740, Ore. 766, S. D. 821, Wis. 940 for failure of public warehousemen to post license N. D. 690 for violation of cold storage laws, Calif. 67, Del. 105, Ind. 247, la. 270, Mass. 402, Neb. 594, N. J. 608, N. Y. 627, N. D. 708. Pa. 785 for violations of requirements of labeling cold stored, preserved or incubated eggs, Conn. 94 for violation of warehouse laws, Ala. 26, Ariz. 44, Ark. 49, Del. 101, Ida. 159. Ind. 235, 237, Ky. 312, La. 352, Mich. 419, Minn. 452, 469, Mo. 516, 529, N. J. 603, 604, N. D. 693. 709, Ohio, 722. Okla. 748, 757. 760, Ore. 763. S. D. 827, Tenn. 837, Texas, 859, Vt. 873, Va. 877, Wash. 909, Wis. 959, Wyo. 978 for issuance of duplicate receipts not so marked, Minn. 485, Mont. 566, Okla. 758, U. W. R. A., 17, Wis. 929 for violation of laws respecting warehouse receipt, la. 262, Wash. 911 for failure of warehousemen to deliver goods on presentation of receipt Wis. 943 for issuance of fraudulent bills of lading Mont. 565, Wis. 921 for failure to comply with requirements regarding inspection of grain S. D. 831 for violation of act respecting inspection of grain Wash. 907 for improper inspection of grain or scales Ida. 162 for delivery of grain without notice from registrar of can- cellation of receipts 111. 183 for neglect by inspector or weigher of grain, Ky. 322 for failure to deliver grain on demand Ky. 318 for unlawful act by chief inspector, assistant inspector or weighmaster Kan. 282 for briberv of chief inspector of grain, Wis. 952 for bribery of officers concerned with inspection of grain,. .Kan. 283 INDEX. 1071 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PENALTIES — Continued. page for permitting removal of grain when receipt outstanding, .Ind. 239 for misconduct of inspectors of grain, 111. 180 for violation of act by employees under grain inspection, . .111. 176 for failure to deliver proper documents for shipment of grain, Md. 375 for neglect of duty by chief inspector of grain, Mont. 576 for issuance of false certificate as to weight of grain, .... Alo. 537 for malfeasance of chief inspector or assistant inspectors of grain, Mo. 53 1 against warehousemen for failure to deliver inspector's and weighmaster's certificates of grain, X. D. 704 for violation of laws pertaining to stored grain, S. D. 831 for refusal to deliver grain on demand, larcenj-, S. D. 824 for improper conduct by inspector of grain, Okla. 750 for assuming to act as inspector of grain, Okla. 750 for neglect of duty by inspector of grain, Wash. 897 for impersonating chief or deputy inspectors of grain, 111. 180, Minn. 463, Mo. 532, Wis. 952 for unauthorized weighing of grain, Wis. 960 for sale of grain without inspection, Wis. 962 for shipment of grain without inspection, Wis. 965 for interference with inspection of grain, Wis. 965 for overloading grain cars, Minn. 475 for tampering with sealing devices on grain scales, Minn. 476 for conversion of goods by warehousemen, commission mer- chants, etc Mo. 544 for fraudulent conversion by bailee, Ga. 123 for fraudulent conversion by bailee of proceeds of sale Ga. 124 for issuing warehouse receipt or bill of lading when goods not in possession, Md. 375 for unauthorized sale of stored goods by warehouseman,. .Mont. 566 allowing goods to be removed without surrender of warehouse receipt .••■••: HI- 193 for failure to allow inspection of safe deposit boxes on death of lessor 111. 194 for disposing of warehouse receipt after an attachment, . .Mass. 397 for negotiating warehouse receipt without disclosing attach- ment Me. 369 for failure to make required affidavit where warehouse receipt pledged. La. 345 for tampering with tobacco samples Md. 381 for unauthorized inspection of tobacco Mo. 542 against speculation by inspector of tobacco, Ohio, 725 for tobacco warehousemen dealing in tobacco Tcnn. 842 for acceptance of bribe by tobacco warehouseman Tonn. 843 for extortion by tobacco warehouseman Tenn. 843 for delivering wrong tobacco from warehouse Va. 884 for not delivering tobacco from warehouse on demand Va. 884 for use of false l^rands and marks on tobacco Va. 888 for sending tobacco to wrong warehouse, \'a. 890 for violations of laws respecting tobacco N. C. 682, \'a. 889 for receiving tobacco without consent of owner, Va. 889 for "nesting" tf)hacco Tcnn. 843. \'a. 888 against carriers for failure to comply with orders of railroad and warehouse commission Minn. 450 for failure of carrier to give receipt for grain Minn. 471 1072 INDEX. References to laws are printed in romanj those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. FEKALTlES—Contiinii-d. page for violation by carrier of requirements respecting bills of lad- ing Minn. 473 for failure to deliver to buyer duplicate weighmaster's and inspector's certificates, Minn. 478 for misconduct of inspectors of grain or weighmasters,. . Minn. 463 for unauthorized use of words "state weighmaster," etc.,.. Minn. 464 for refusal to permit examination of stored goods, ... .Mich. 423 for fraudulent disposition of property by agents, Mich. 429 for disposition of property receipted for, Mich. 430 for failure to obey order of railroad and warehouse commis- sion Minn. 446 for using incorrect scales, New Mex. 613 for unlawful sale of goods stored in public warehouse,. . . .N. C. 683 for tampering with seals of inspection on cars, Wis. 958 for obstructing work of weighmaster or assistants, Wis. 950 for failure of warehousemen to disclose his ownership of goods represented l)y negotiable receipt, Wis. 930 for issuance of receipt when goods not received, Wis. 929 for use of false weights and measures Wis. 967 for improper issuance of samplers receipts, Va. 884 for delivery of tobacco from warehouse without owner's order, Va. 884 for false brand on tobacco, Va. 883 for unlawful removal of articles from bonded warehouses, Porto Rico, 991-92 for failure of railroad to lay tracks to warehouse, Ore. 770 clerk of county court to prosecute for, Tenn. 844 for violation of laws respecting inspection and storage of oil, R. I. 801 for keeping inflammable fluids not inspected, R. I. 799 against warehousemen for concealing gooods frotn constable or sherift', Pa. 786 for overcharge for storage of freight S. C. 813 for neglect or refusal to obey board of commissioners' subpoena, Okla. 753 for false statement concerning stored cotton Texas, 858 for neglect of duty by inspector, Ohio, 725 against inspector for taking illegal fees, Ohio, 725 against altering inspection marks, Ohio, 725 for discrimination in storage charges, . . .N. D. 700 for failure to obey subpoena of warehouse commissioner, .Mo. 536 for maintaining insanitary place for storage of food, Calif. 62 for violation of provision respecting weights and measures, .Calif. 63 for warehousemen of Class A, for doing business without license, 111. 170 for unlawful sale of stored goods, Mass. 397 for failure to furnish lists of personal property on storage to tax assessor Mass. 399 for breach of trust by one holding warehouse receipt Md. 376 for violations of sanitary code, La. 353 for combination to deliver property contrary to owner's direc- tions, .-Il'- 181 none provided for failure to put brands and marks on receipts, III. 182, 217 for burglary, and entering house to commit a felony,. .Ind. 243, 244 for housebreaking, Ind. 245 INDEX. 1073 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PENALTIES— Continued. page l)enal sections warehouse act embraced in its title and are valid, ; ni- 224 for issuance of receipt when oil not in store Ky. 315 prior act repealed by Uniform Warehouse Receipts Act pre- scribing different penalties, Md. 17. 374 for making agreements in restraint of trade Kan. 297 on public warehousemen for failure to furnish information, 111. 190 for interference with weighmaster 111. 192 for burning warehouse, Fla. 115 for unlawful disposition of stored goods Ga. 124 for embezzlement by warehousemen, Colo. 88, D. of C. 109, Fla. 115, 111. 193. Ohio, 728, Wis. 935-937 PERISHABLE FOODS. See also, GOODS, sale for storage charges, procedure, Ala. 24, Ariz. 45, Colo. 87, Fla. 113, Ga. 121, la. 264, Mich. 422, N. C. 680, Ore. 770, S. C. 810, U. W. R. A., 12, Wis. 927 disposition of where non-negotiable receipt has been issued, Mass. 395 sale of, by carriers, Ohio, 722 PERSONAL PROPERTY, lists of, on storage to he furnished tax assessors, penalty, Mass. 399 PERMIT, to conduct cold storage business required, how obtained,. .La. 354 required to conduct public warehouses Ind. 227 PERSON, defined, U. W. R. A. 19, Wis. 931 PETITION, for acquiring site for public warehouse, contents S. D. 828 PETROLEUM OIL. See OIL. PLACE OF STORAGE, where agreed upon, warehouseman liable, if he removes goods. Mo. 549 PLEADINGS, complaint must aver ownership of receipts in plaintiff ,... .Ala. Z7 complaint must allege indorsement of receipt to plaintiff', also refusal to deliver, Ala. 39 where demand and refusal alleged but not negligence burden of proof on warehouseman, Mass. 410 where negligence alleged and simply non delivery proved ver- dict for defendant directed, Mass. 410 negligence may be avered in general terms, Porto Rico, 992 proper and improper avermants in declaration alleging dam- age in cold storage, Del. 106 showing under plea of non detinet, D. of C. 112 insufficient allegations charging loss of compress receipts by warehouseman, Ala. 34 complaint in trover must aver ownership,. Ala. iZ sufficiency of complaint in action for conversion, Ind. 251 failure to aver in petition absence of other insurance, fatal, III. 216 proof must conform to facts alleged in la. 276 insufficiency of declaration where goods destroyed by fire,. .Pa. 791 68 1074 INDEX. References to laws are printed in romanj^ those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PLEADINGS— CoiitiiniCiL page insufficient averment in regard to ability to furnish storage,. .III. 199 defenses zvliieh max be included i)i a>iswer of wareliousenicn, S. C. 815 counts in declaration in detinue by bailee held not niis-joincd, Va. 892 (letition need not contain name of agent who made parol con- tract to insure, Ga. 140 warehouse receipts need not be set forth in, Ga. 140 complaint must allege to whom receipt indorsed, Ala. 40 bill of particulars showing agreement not to sell goods for charges, N. Y. 659 evidence as to danger outside of warehouse excluded,. .. .Mo. 558 in action to acquire site for public warehouses, S. D. 829 PLEDGE. See also, PLEDGEE. defined, West Va. 918 not valid tinder uniform Warehouse Receipts Act if warehouse receipt issued in fraud of owner's rights, La. 14, 365 of warehouse receipt, issued without authority of owner of the goods, void under sec. 40, Uniform Warehouse Receipts .let, La. 14 by warehouse receipt valid, Ala. 35, 38, Ga. 135, Mich. 436, Minn. 492, Mo. 559, 60 of goods by factor or agent for antecedent debt, Ohio, 718 a factor has authority to, N. Y. 651, 667 by factors to the extent of their interests, Tenn. 846 by factor, although unauthorized, valid, Ohio, 7i7 by factor, owner protected, Ga. 131, La. 357 by factor, extent to which innocent pledgee protected,. .. .Ky. 330 pledgee has claim on only factor's interest in the goods,. .Ala. 39 by receipt in warehouseman's own name, valid, Ky. Z2)7 of rccciht issued bv warehousemen to himself, when valid, N.D. 710, Ore. 775 by warehouseman of receipt issued by him to himself, invalid, Ind. 256, la. 261 delivery of, possession essential to, N. Y. 651, Wis. 972 facts stated and held not to constitute change of possession. Wis. 972 lien not destroyed by pledgor being in possession, Mass. 408 by non negotiable receipt, not valid against attaching creditor of the goods, _. Mass. 412 by non-negotiable receipt, valid, N. Y. 655 of property by bailee, owner protected, Colo. 88 liability of pledgee for storage charges, ..N. Y. 666 bv warehouse receipt, chattel mortgage laws not applicable, Colo. 89 pledgee of warehouse receipt protected as against unpaid vendor, Colo. 91 made by pledgee to another in good faith, D. of C. 112 purchaser zvithout notice of fraudulent removal of goods by pledgor, not protected, Ala. 33 pledgee cannot be deprived of his rights by fraudulent removal of goods by pledgor, Ala. 33 purchaser of cotton protected where same pledged by fraudu- lent receipt, _ .• Ga. 144 where grain commingled, pledgee tenant in common with other receipt holders, Minn. 492 INDEX. 1075 References to laws are printed in romanj^ those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PLEDGE — Continued. page by receipts of warehouseman in name of pledgee against ware- houseman's goods, proper, Minn. 497 substituted goods take place of former where receipt pledged, Minn. 492 of receipt for warehouseman's own indebtedness prohibited, proviso, .' Alich. 418 by warehouse receipts, statue must be strictlv complied with, La. 364 rights of pledgee of receipts superior to those of owner of goods, La. 364 of bill of lading by agent, bank protected, Mass. 414 of warehouse receipt by pledgee, owner protected, Mass. 412 sale of property in case of default, procedure La. 346, 347 affidavit required where warehouse receipt pledged, penalties, La. 345 conversion where pledgee sells property not ctnhraccd in...Ky. 341 pledgee not negligent b\ failing to see to cancellation of receipts. Ky. 338 by warehouseman of receipt issued h\ him to another, void. Ky. 338 legal title remains in pledgor, Ky. 330 may be made by bill of lading Ky. 330 when warehouseman's lien inferior to that of pledgee Ky. 329 pledgor has no right to possession until debt extinguished.. .Mo. 554 by non-negotiable receipt by vendee, vendor's lien protected. Mo. 551 of warehouse receipt, goods must be insured at market value, Mn. 545 setting apart and tagging pledged property sufficient iV. Y. 651 unlawful sale by pledgee constitutes conversion iV. Y. 650 only pledgee of receipt can maintain replevin against warehouse- man, Miss. 506 agents, factors, etc., may validly pledge Me. 368 when pledgee may sell, Ill- 21 1 of ware'ouse receipts without indorsement, pledgee holds sub- ject to equities Ind. 257 irregular receipts held sufficient to constitute valid, Ind. 253 rights of pledgee Ga. 142 by bailee of goods, void, Kan. 306 of receipts by warehouseman in excess of advances, prohibited, Tenn. 837 of warehouse receipt pledgee may sue in bis own name, ..S. D. 824 pledgee must shozv himself to be innocent holder Tenn. 851 pledgee need not wait for most favorable market to sell.. .Te.vas. 863 pledgee protected where goods delivered in settlement of ante- cedent debt Pa. 796 requi.nles of valid Wis. 972 setting forth contract zvhen action one in tort Porto Rico. 992 of stolen goods, void, JVash. 913 pledgee has power to sell warehouse receipt Ky. 312 pledgee of warehouse receipt may maintain iroi'er Ga. 134 PLEDGER, protected where receipt not indorsed Ga. 142 must ha'i'e possession, Ga. 143 may recover from one who wrongfully converts bill of lading. Mass. 414 1076 INDEX. Keferences to laws are printed in roman ^ those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. POLICE, PAGE carriers must furnish, protection for cars containing grain, Minn. 465, Wash. 906, Wis. 957 POOLING, by grain warehousemen and others prohibited, penalty, .Minn. 469 POSSESSION, contents of safe deposit boxes not in safe deposit company, N. Y. 622, 639 of contents of safe deposit box in the lessee's thereof,. .D. of C. 110 bank not in, of contents of trunk, Mass. 408 essential to factor's lien, but mav be actual or constructive, Ga. 133 lien lost by surrender of, and not revived if regained ///. 205 // lost bv warehouseman, not obliged to attempt to regain, when, '. Mass. 404 only lien remaining after surrendering, will be that agreed upon, _ _ ///. 204 where owner of goods wrongfully deprived of, his rights superior to lien of warehouseman, Ky. 331 pledgor not entitled to, until debt extinguished, Mo. 554 right of docs not accrue to bailee until delivery, Wis. 969 facts stated and held not to constitute sufficient change of, to sus- tain pledge, '^Vis. 972 what constitutes, of goods a question for the jury, N. Y. 666 essential to creation and continuance of lien, A^. H. 599 POSTING, of statements weekly showing grain in store, 111. 173, Kan. 288. Ky. 318 of notices when grain out of condition,. . Ind. 230 of printed copy of act in warehouses required, 111. 183 rates of storage by public warehouseman must be annually. Wash. 902 POULTRY, must be drawn before being cold stored, Del. 104 POWERS, of warehouse corporation, Ind. 240 POWDER, storage of is negligence, Colo. 90 PRESERVED E(i(iS. must be so labeled, Conn. 93 PRESUMPTION, of ownership from possession not applicable to warehousemen. La. 357 that receipt non-negotiable, when, Calif. 81 that bailee at fault where things returned in damaged condi- tion, Porto Rico, 989 when there is, of negligence, Nev. 598, Wis. 970 PRICE, not always criterion of value where stored goods injured, N. Y. 660. 661 measure of damages, market value criterion, A''. Y. 661 INDEX. 1077 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PRIMA FACIE CASE, page established by refusal to deliver on demand, .N. Y. 645, N. D. 711 where goods injured or lost, ///. 212, Wis. 969 how made in care of loss or injury to goods,. . . .Ga. 127, N. F..633 where goods injured in cold storage, JVash. 914 evidence which was held to constitute, .Ga- 129 what constitutes, in action against warehouseman, Miss. 506 how, of negligence established, ^fo. 557 putting burden on warehouseman to disprove negligence,. .Miss. 507 what necessary to establish, where there has been change in ownership of warehouse, N. Y. 638 PRINCIPAL, his rights and those of his factor, ^a. i^o title remains in regardless of change of form of property, .La. 36U PRIVATE PROPERTY, taking of for public warehouse, procedure, S. D. 828-8>-)0 PRIVATE WAREHOUSEAIEN. See also WAREHOUSEMEN, PUBLIC WAREHOUSEMEN. receipts issued by, are quasi negotiable, ///. 216 non-negotiable receipt of pledged, inferior to rights of at- taching creditor, Mass. 412 receipts by, against own goods, creditors protected, Ind. 253, 257 PRIVATE WAREHOUSES, act not applicalile to. Ida. 152. La. 352, Okla. 757. Texas. 860 for storage of tobacco not prohibited, Tenn. 844 PROCEEDS, from insurance where all goods not insured, Ga. 139 of sale for storage charges, disposition of, la. 265, Ky. 313, Mass. 396, N. Y. 628, Tenn. 836 PRODUCERS, warehouse laws not applicable to, S. D. 827 PROSECUTING ATTORNEY, to prosecute for violation of warehouse laws, when, Ida. 163. Mo. 529, 535 PROSECUTIONS, for violation of warehouse laws 111. 188 in name of people against public warehousemen, when, 111. 191, Okla. 753 PROXIMATE CAUSE, the law does not look beyond, where goods injured or de- stroyed Mich. 437 removal of goods from agreed storage room, held proximate cause of their subsequent destruction by fire, N. Y. 653 where goods destroyed by fire, N. C. 686, Tenn. 9>-\7 PUBLICATION, in January of storage rates for year 111. 176 of notices of warehousemen's licenses Mass. 394 of notice of sale of unclaimed tobacco Md. 383 of notice of sale of goods pledged by warehouse receipts. La. 346, 347 when goods upon which advances have been made arc to be sold, Colo. 86 1078 INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. ri I'.Ll*. ATIDN— C'()»/i/;»(-(/. i'AGK of rules and regulations of State Grain Commission, ..Ida. 151 of rules and regulations by grain and warehouse commission, Wis. 954 of list of policies of insurance by public tobacco warehouse- man, Va. 889 PUBLIC ELEVATORS, must have license, Ida. 152 PUBLIC GROUNDS, erection of public warehouse on, permitted, Mo. 562 PUBLIC NUISANCE, insanitary places where food stored declared to be, Calif. 62 "PUBLIC WAREHOUSE," must appear on front of building, Conn. 93 PUBLIC WAREHOUSEMEN. See also, PUBLIC WAREHOUSES, WAREHOUSEMEN. PUBLIC WAREHOUSEMEN, defined, Ind. 227, Me. 369, Mont. 577, Okla. 739, 754, S. C. 805, Tex. 854. Wash. 895 duties of • .Minn. 466, Mo. 521 must receive all grain offered without discrimination, Ida. 153, 111. 170, Ind. 228, Kan. 285, Minn. 455, 466, Mont. 578 refusal to deliver grain on proper demand declared larceny, N. D. 693 must procure license, Kan. 284, 285, Mass. 393, Mo. 519, Mont. 577, N. D. 700, S. C. 820, Wash. 901 license, fee, how determined, N. D. 690 misdemeanor to transact business without license and bond, Mont. 578 must give bond, Kan. 284, La. 349, Mo. 512, 520, Mont. 578, N. Y. 677, Okla. 740, S. C. 805, 820, Texas, 855, Wis. 940 liable on bond in case of neglect Ky. 321 must insure goods when requested by depositor N. D. 699 books of, open to inspection, 111. 189, N. C. 678 must obtain certificate of county clerk, Okla. 754, Texas, 855 who are, _• ^"- 1^° prohibited from speculating in grain, -HI- 198 weekly statements under oath of contents, warehouse receipts, etc., Ill- 165 prohibited from entering into combinations, Mo. 522 ma\ knvfullx pledge own property stored in their zvarehouse, N. D. 710 weekly reports from required, Okla. 745 under supervision of commissioner of insurance and banking, Texas, 857 annual reports Wash. 903 must issue receipts for stored grain, Wash. 908 to make reports to grain and warehouse commission Wis. 944 lessee of warehouse belonging to railroad declared, Wis. 964 responsible for loss by fire, Mont. 584 must furnish statement to chief grain inspector on demand, Mont. 581 INDEX. 1079 Keferences to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PUBLIC \y.\REHOUSEMElig trunk held not chargeable with contents under trustee process, ,^fass. 408 sec. 1840, Ci7'il Code not applicable Calif. 73 facts shown and held to constitute negligence ///. 202 implied agreement contents will be protected' as far as human foresight permits ///. 202 facts stating showing lack of proper care Calif. 72 retention of key by company not proper care Calif. 72 special agreement held not to modify obligation of duty of bailee for hire, Calif. 72 bank renting box becomes bailee for hire Calif. 72 statement in receipt box only to be opened in presence of both lessees, D. of C. 110 10Sr> • INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. SAFE DEPOSIT— Continued. i'A(;k conif'any a bailee for hire with reference to contculs of boxes, Texas, 863? U'he)i boxes not attached to realty they do not become part of ///. 203 SALE. See also. BAILMENT AND SALE, SALE FOR STOR- AGE CHARGES. warrantees on sale of receipt, L'. W. R. A. 15, Wis. 928 warehousemen precluded from selling stored goods, Ind. 235, Mass. 397, Minn. 456, Mont. 566, Ohio, 719, Va. 878 Wyo. 977 essentials of, Qa. 141 of goods pledged by warehouse receipt, procedure, La. 346, 347 of uninspected tobacco prohibited Md. 385 of unclaimed tobacco, procedure, Md. 383 of grain out of condition, when,.. 111. 179, Kan. 292, Mont. 584-586 of cold storage products, when unlawful Ind. 245 of goods which have been in cold storage, notice, Calif. 67 of food kept in cold storage beyond prescribed time, when, N. J. 607 of grain by sample, right to not impaired, Kan. 283 locus of in case of grain, Wis. 960 fraudulent conversion of proceeds of sale by bailee, penalty, Ga. 124 of stored goods clear of vendor's lien Calif. 69 by delivery of order on warehouseman for the goods, binding, Calif. 83 warehouseman with power to receive offers not authorised to sell, ._ Mass. 404 bailment which may be converted into, D. of C. 109 by grain warehouseman of wheat, presumption is the wheat was his own, Calif. 69 by delivery of warehouse receipt Ala 26 facts stated and held to constitute, of stored wheat, la. 271 when factor's power of is not revocable, Ga. 131 on credit when directed to sell for cash is not conversion, Ga. 128. 134 facts, stated and held constituting, by way of mortgage,. .. .III. 217 by pledgee, reasonable notice must be given pledgor, III. 211 by depositary is a theft, La. 358 unauthorised, but not promptly disavowed, by owner, held ratified, Ky. 327 of tobacco, where chattel mortgage recorded, warehouseman protected, Ky. 327 when contract one of, and not bailment, ///. 196. 197 unauthorised, by warehouseman passes no title, Minn. 489. 490 one purchasing goods from bailee acquires no title, A'^. H. 599 purchaser of goods through warehouseman liable for storage charges, when, N. Y. 647 postponement of by government, for duties releases ware- housemen's surety A''. F. 642 of grain by surrender of tickets, N. D. 709 bailment with power of, personal trust which cannot he dele- gated, Ff. 874 wrongful, of stored goods, constitutes conversion Vt. 875 of warehouse to irresponsible party seller liable Texas, 863 INDEX. 1087 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. SALE FOR STORAGE CHARGES. See also, SALE. page procedure, notice, etc. Ariz. 45, Calif. 58, Del. 99, D. of C. 108, Fla. 113, Ga. 120, Kan. 297, Ky. 313. Me. 370, Mass. 395, 396, Mich. 419, 420, Minn. 482, 483, Miss. 540, Mo. 513, Mont. 564. 565, N. Y. 627- 629, N. C. 679, 683, Ohio, 720, 721, Ore. 767, S. C. 808, Tenn. 835 procedure, .... Hawaii, 986, U. W. R. A. 11, Wis. 926, Wyo. 978-980 in cases of perishable goods, procedure, Ariz. 45, Colo. 87, la. 264, Mass. 395, Mich. 422, U. W. R. A., 12, Wis. 927, 932, 933 warehouseman not liable after lawful sale of goods to satisfy his lien, U. W . R. A. 13, Wis. 927 method prescribed to satisfy lien not exclusive. U. W. R. A.. 12. Wis. 927 of abandoned goods, procedure. Ark. 50. Colo. 85. la. 263. Mich. 426, Ore. 768, 69, Wis. 934 disposition of proceeds, Ky. 313, Mich. 420, 421, Ohio, 721, Tenn. 836, U. W. R. A. 12, Wis. 927, 931 redemption before sale and disposition of proceeds N. Y. 628 procedure where advances have been made Calif. 58, Colo. 86 disposition of surplus moneys, Del. 100, S. C. 809 record of to be kept Mich. 421 owner liable for deficit, S. C. 810 within what time property may be claimed Ohio, 722 fees allowed Justice of Peace for, Wis. 932 of freight, procedure, Ala. 24 goods may be sold for, in bulk or separately, D. of C. 108 depositor liable if proceeds of sale insufficient Mass. 395 notice to owner, la. 263, 273 must be made in accordance with statute, Calif. 73, 74, D. of C. Ill, ///. 204, I Vis. 971 without notice constitutes conversion, Ind. 252 of unclaimed goods requirements as to notice, Ida. 263, 273 constitutes conversion unless proper notice be given,. .. .Calif . 74 by sheriff, when improper, Calif. 75 must be had within a reasonable time after expiration of year, N. Y. 646 notice of, cannot be waived by provision in receipt, A'^. Y. 645 right to, under law, may be modified by agreement N. Y. 645 if statute not complied with, constitutes conversion,. .. .N. Y. 636 under prior law conversion, Me. 371, 372 warehouseman held liable where he sold for, more of the goods than necessary to pay accrued charges Minn. 491 warehouseman must obtain best price possible, Minn. 491 warehouseman may only sell sufficient goods to cover same, .Mo. 553 although void, warehouseman's lien not lost, 111.204 .SAMPLERS OF TOBACCO. appointment, term, qualifications and bond Va. 880 appointment of deputies, etc V'a. 881 form of receipt prescribed Va. 882 to furnish manifests when requested Va. 884 to keep books of record Va. 885 prohibited from buying Va. 885 discharged from liability on delivery, Va. 885 fees of, prescribed Va. 885 '88 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. SAMPI.1:KS ()\- TO\\\L\'0— Continued. page when, from anotlier warehouse to act, Va. 886 fees of on removal of tobacco from warehouse, Va. 886 removal of, procedure, Va. 888 SAMPLERS RECEIPT. See also, WAREHOUSE RECEIPT. form of for tobacco prescribed, Va. 882 what to state when tobacco in good condition, Va. 882 to be immediately delivered on receipt of tobacon Va. 884 improper issuance of, penalty Va. 884 SAMPLER'S TICKET, not a warehouse receipt, ///. 212 SAMPLES. See also, TOBACCO SAMPLES. public elevators to be furnished, of grain, Kan. 280 sale of grain by, permitted, Kan. 283 standard, of grain, to be furnished by chief inspector, Minn. 460, Mont. 573 grain may be sold by, regardless of grade Moiit. 577 standard of grain to be furnished warehousemen,. .Ida. 151, Wis. 954 to be furnished by chief inspector of grain, to whom, Wash. 904 of inspected tobacco should be done up, Mo. 541 inspector of tobacco to select, Ohio, 726 of tobacco to be delivered to owner Ohio, 726 warehousemen liable for failure of to conform with tobacco sold, Ohio, 727 warehousemen must not convert, of tobacco, to own use,. .Tenn. 841 SANITARY, if cold storage warehouse not, license revoked, la. 268 SANITARY CODE, revision and amendment of by state board of health, La. 353 penalty for violation of La. 353 SANITATION, requirements as to, where food stored, ;•.••• Calif. 59 cold storage warehouses must be in sanitary condition, Calif. 64, La. 354, Neb. 590, N. D. 705, Pa. 783 SCALES. See also, INSPECTION OF SCALES, TRACK SCALES, in pul)]ic warehouses, subject to examination and test, Mont. 582. N. Mcx. 613, Okla. 747, S. D. 827 to be furnished by public warehousemen, Mo. 537 to be furnished by railroad, where to be located, Mo. 537 carriers must furnish for weighing grain, Wash. 905 tobacco warehouses to be equipped with, Va. 888 for weighing of tobacco to be furnished by warehousemen,. Mo. 542 use of incorrect, a misdemeanor, Mont. 582 sealing devices for, penalty, Minn. 476 inspection of • • • Mo. 529 inspection of in tobacco warehouses Tenn. 839 testing of by sheriff in public warehouses Okla. 759 testing of, penalties, Wis. 949 under control of state hay and grain commission Ida. 161 SEALS, of warehouse corporation .Ind. 240 tampering with or breaking of grain inspection prohibited, penalty Wis. 958 INDEX. 1089 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. SECRETARY OF STATE, ,,,.,.. e ^^""0?! to issue charter for cotton holding Associations, b. L. el J SEGREGATION, what constitutes, • • • • ■ y:°',J- '\ when warehouseman estopped to rely upon absence of,...Lalit. 7o necessarx to protect purchaser's rights, when, Calif. 76 SHEEP, warehouse receipts for slaughtered, who may issue, Minn. 480 SHERIFF, ^., __. justified in breaking outer door, • • ^V °i^ when liable on bond for storage charges,. W^rt' II not liable for seizure in absence of segregation of goods,. .Calif. 76 storage charges paid to, he liable for to attaching plaintiff,. .III. 205 SHIPMENT, , ^ -, . ,3Q owner's directions as to must be obeyed, J-y^d- ^o^ SHRINKAGE, . . , . .. ^ ,,0 provisions in warehouse receipts respecting, binding, Ky. >j«5y SIDE TRACKS, ^ ^ •• ^ , to warehouses to be constructed and maintained by carriers, Minn. 454 to public warehouses, ^^^- ^^^ when railroad must lay, to warehouse, penalty,. ...... .....Ure. //u right of warehousemen to have, procedure Kan. Z'J/, zys, -iVV 'of "cold storage eggs" required,. .............••.•••• -Mass. 403 "Cold Storage Goods Sold Here" to be displayed,. La. 356, Mass. 401 display of required, where cold storage goods offered fo^r^ sale, ^^ SPECIAL BINS, „. .r. grain to be stored in if owner so requests, Minn. 450 SPECIAL GRADES, . . g,. to be stored in separate bins, wis. ytu SPECIAL LIEN. See, LIEN. nhihitpd imm sbsculatina in graii , III. 198 'i PECULATION public warehousemen prohibited from speculating in grain SPIRITS. See also, LIQUOR. , , , ., ■„ . .„.„, liable to government tax where fraudulently withdraivn from warehouse and mixed zvith other spirits, Mass. hu.-i STANDARD BUSHEL, none other to be used, M'""- "^^^ STANDARD GRADES, of wheat to be established, ^aa. lai C'T' A 'TTT prosecutions for violation of warehouse laws to be in name of. '^ Mo. 535, Okla. 753 debts on behalf of, not to be incurred by grain and warehouse commission 69 ICX^O INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. STATE — Continued. page actions hy railroad and warohouse commission to be in name of Minn. 447 has 110 pozi'cr to go into the grain zvarchoiisc business,. . .Aliun. 502 a necessary party to a proceeding for conducting public ware- house without a license, Kan. 284, 305 action on public zcarclwuscnicn's bond should be brought in the name of, A^. D. 691 may prescribe regulations for stock yard business, Kan. 309 STATE AUDITOR, monthly report of chief inspector of grain to be filed with, Mont. 575 may anticipate receipts, Wash. 907 STATE BOARD OF HEALTH. See also, BOARD OF HEALTH, authority of, respecting cold storage plants, Calif. 64, 67, La. 354, Mass. 400, 402, N. J. 606 duty to enforce cold storage act, Ind. 247 right of inspection of places where food stored, Calif. 61 to grant permits to operate cold storage warehouse, La. 354 to inspect and supervise cold storage warehouses and food placed therein, La. 355 quarterly reports to from cold storage warehouses. La. 355, N. J. 606 authorized to revise and amend sanitary code, La. 353 right of, to make regulations sustained, La. 353 STATE COMMISSIONER OF HEALTH, powers of, respecting cold storage, N. Y. 625 condemnation of food by, N. Y. 626 STATE COMPTROLLER, to be notified of death of lessor of safe deposit box, N. Y. 620 STATE DAIRY AND FOOD COMMISSIONER, duties of in regard to licenses for conduct of cold storage business, I^.. 267 quarterly reports to, on food in cold storage, la. 268 duty of, to inspect food in cold storage, la. 269 to make rules and regulations governing cold storage, la. 270 STATE GRAIN COMMISSION. See' also, STATE HAY AND GRAIN COMMISSION. creation and personel of, Ida. 150 powers and duties of, Ida. 150-164 salaries, receipts and expenditures of Ida. 154 STATE GRAIN INSPECTION DEPARTMENT. See also, GRAIN, INSPECTION OF GRAIN. creation of Mont. 571 to have full charge of inspection of gram, Ken. 278 STATE HAY AND GRAIN COMMISSION. See also, STATE GRAIN COMMISSION. to prepare annually rules and regulations, Ida. 159 collections of fees, fines and penalties by, Ida. 161 appropriation of fund for, Ida. 163 STATE HAY AND GRAIN INSPECTOR, appointment and qualifications of, Ida. 152 appointment of deputies by, Ida. 160 INDEX. 1091 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. STATEMENTS, . . . page of condition of warehouse must be furnished chief inspector of grain, on request, Kan. 288 of grain in store, to whom and when made, 111. 173 daily and weekly by public warehousemen, Wis. 944 weekly, contents of public warehouses, warehouse receipts. 111. 165 of grain in warehouse to be posted weekly, Ky. 318 weekly of grain in store by terminal warehouses Minn. 457 of grain received, etc., to be made daily, Mo. 526 to be printed on back of warehouse receipts showing recordation of declaration Mich. 432, Minn. 480 grain warehousemen to commissioner of agriculture and labor, : N. D. 703 from public warehousemen under oath, when required Okla. 747 from grain warehousemen to be filed annually Ore. 766 of grain in warehouse to be posted weekly Kan. 288 sworn, to be furnished warehouse commissioner on request. . Alo. 528 STATE OFFICERS, ■ inspectors of grain are not, Mont, boo STATE RAILROAD AND WAREHOUSE COMMISSION. See RAILROAD AND WAREHOUSE COMMISSION. STATES provisions respecting warehouse receipts issued in other,.. Ind. 236 STATE SCALE INSPECTOR, to inspect scales in public warehouses, Mo. 529 STATE TREASURER, . . ^ t^ oo. to receive all moneys collected by railroad commissioner,. .S. D. oZJ STATE WAREHOUSE SYSTEM, act attempting to create, held unconstitutional, 5". C. 818 "STATE WEIGHMASTER," unauthorized use of words prohibited, penalty, Minn. 463 STATUTE OF FRAUDS, agreement to pay storage charges, not within, when, Ala. 31 delivery of goods by bill of lading is within terms of, Mont. 588 STATUTE OF LIMITATIONS, when it begins to run in cases of bailment, Ga. 125, Texas, 861 pleading same not inconsistent with denial of hailnieiit and al- legation of loss of goods without warehouseman's fault, .S. C. 815 begins when bailee sets up adverse claim, D. of C. 110 begins to run when bailee just holds adversely to bailor, la. 272 when it begins against action in trover, D. of C. Ill when it begins to run where goods destroyed, S. C. 814 demand must he made withi)i reasonable time in case of con- version, West Va. 917 six years in action for conversion Mich. 435 when it begins to run in case of conversion. Ga. 126 STATUTES, sees. 1 and 3 ch. 141 R. S. in regard to sale of unclaimed prop- erty not a/>/'/iVrt/;/(? to warehousemen, ///. 207 .STIPULATIONS, as to value of goods in bill of lading held valid, Calif. 83 \(P2 INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. STOCK, . PAGE in warehouse corporations, collecting calls, Ind. 240 STOCKHOLDERS, liability of, in icarcliousc company, N. Y. 675 STOCK YARDS, analogy between business of, and that of warehousemen,. .N. J. 611 state may hmiully prescribe regulations for, business, Kan. 309 not subject to public control, N. J. 611 STOLEN GOODS, innocent delivery of by warehouseman valid, Conn. 96 STOPPAGE IN TRANSITU, no right of where negotiable receipt taken in good faith, U. W. R. A. 16, Wis. 926 how right of may continue even though goods stored in ware- house, -^ • D. 833 right of, defeated by sale in good faith prior to goods arrival. Me. 373 STORAGE, defined, Calif. 57, N. D. 702 when may be terminated by depositor and by depositary,. .Calif. 57 special contract governs, when, Ga. 132 STORAGE ACCOUNTS, of whiskey distilleries are subject to taxation, Ky. 342 STORAGE CHARGES. See also FEES, SALE FOR STORAGE CHARGES, rate of, must appear on receipt, U. W. R. A. 1, Wis. 921 rates of for fractions of week or month, Calif. 57 rates of for uninspected tobacco in state tobacco warehouses, Md. 385 for tobacco prescribed, Tenn. 843 for tobacco, after certain periods prescribed, Md. 384 rates of for hogsheads of tobacco, Va. 885 maximum for grain fixed by law, 111. 176, Kan. 290, Minn. 458, Mo. 526, Mont. 584, N. Y. 631, N. D. 693, Okla. 745 statute prescribing held constitutional, III. 167, 225, A^. Y. 675, N. D. 715 rates of, for grain, may be regulated by State, Mo. 563 maximum for grain to be printed on warehouse receipts,. .Minn. 466 for flax, fixed by law, .■ Mont. 584 for sustenance and shelter of living animals provided, N. D. 702 rates for grain to be published annually S. D. 826, Wis. 945 publication of at beginning of each year, Kan. 290 tender of necessary to constitute conversion,. N. Y. 637 judgment for not a bar to action for conversion, N. Y. 637 depositary entitled to one weeks' charges for any fraction thereof, Mont. 564 depositor liable for deficit after sale . • . •Ga. 122 when tender not necessary, D. of C. 1 lU how paid where title to the goods in issue, D. of C. luy entitled to up to time of injury to the goods,. • • • -Del 106 writ of replevin will be quashed when not paid, D. of C. IIU warehouseman may retain goods until paid, Calif. 57 lien for paramount, ^- of C INDEX. 1093 References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. STORAGE CHARGES— Cotitiiiued. page absence of express agreement as to tetnperature in cold storage, Conn. 95 when storage for definite term, warehouseman cannot recover unless he holds goods for entire term, Calif. 72> lien for, waived how, Calif. 75 facts stated and held improper sale for, Calif. 74 improper sale by sheriff for, Calif. 74 on sale for warehouseman guilty of conversion unless proper notice be given, Calif. 74 must be paid before action in replevin, Ark. 52 tender of not required where lien lost, Ark. 51 sale of freight to pay, Ala. 24 bailor personally responsible for, Ga, 133 need be no delivery until paid, Ga. 132 not necessary to tender where there is a refusal to deliver the goods, Ga. 128 when agent of ozvner personally liable for, Ga. 127 if paid to sheriff be liable for to attaching plaintiff, ///. 205 owner of goods liable for, although zvarehoiiseman's lien is lost, _. ///. 204 one accepting warehouse receipt becomes liable for ///. 204 set off for in action for stored wheat or its value, III. 203 for damp grain, prescribed 111. 176 claim for. up to date of accidental destruction of goods, valid. Ala. 32 agreement to pay, not within statute of frauds, when, Ala. 31 court of equity without iurisdiction to requlate or prescribe, Ala. 32 if excessive, action at law for money had and received proper remedy, Ala. 32 tender of, and receipt may be waived by warehouseman.. .Minn. 490 warehouseman's lien covers, also for cartage, labor, etc, etc. Mich. 436 recoverable upon facts as stated, Mass. 406 none against Maryland tobacco, when Tnd. 384 for grain, to be published semi-annually Ky. 319 sale of perishable goods for, procedure la. 264 sale for, under prior law unauthorised Me. 371. 372 sale for, questions for fury la. 264 involuntary bailee entitled to A^eb. 594 none after demand for delivery of grain Ky. 318 tender of necessary before replevin brought, Kan. 305 recoverable although goods damaged while in storage La. 360 must be tendered in order to recover damages La. 360 not recoverable unless services performed Ky. 329 if paid twice warehouseman liable for Ky. 329 lien of warehouseman for. subordinate to chattel mortgage, ' Mo. 553 on basis of quantum mrriut where goods destroyed before serv- ices fully performed Mo. 552 not entitled to where fruit ruined by too low temperature.. M. V. 656 liability of pledgee for .^. . .N. Y. 666 warehousemen entitled to, pending liliqation respecting .<:ame, N. V. 648 when goods detained by U. .*>". under pure food act. must he Paid by government, A'^. V. 644 10^'>4 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. STOR.\GE CH.\RGES— (■<'/;///,».■''59 TRUSTEE PROCESS. replez'in will not lie after service of Mass. 407 warehouseman not liable for refusal to deliver to ozvner in case of, Mass. 407 hank not chargeable in, with contents of locked trunk Mass. 408 lUXT INDEX. References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. ULTRA VIRES. page collection of qiitniiiQ citartjcs bv 7varchousc covt'oyatiou is not. Ga. 126 no defense zvhcre a conversion is shozvn ///. 199 nianitfaciuring co)n.hauy acting as zvarehonsenien Ind. 250, 256 rule stated in regard to contracts, exceptions, Ind. 250 UX.ICCOUXTI'.D FOR GOODS, zi'areJwiisenian liable for La. 360 UNCLAIMED GOODS. See also ABANDONED GOODS. degree of care required in the safe keeping of Calif. .58 sees. 1 and 3 cJt. 141 R. S. relating to. not applicable to tvare- honscmen ///. 207 sale of for charges, procedure. Calif. 58. Colo. 85. la. 263. Alich. 426, Mo. 545, Ohio 720, 721, Wis. 934 UNCLAIMED TOBACCO. See also TOBACCO. sale of. procedure Md. 383 sale by samplers, notice, disposition of proceeds Va. 890 UNDERTAKING. See al.so, BOND. County Court to pass on, of grain warehousemen Ore. 765 who may sue on, of grain warehousemen Ore. 765 by grain warehousemen, sureties, form of Ore. 764 UNIFORM WAREHOUSE RECEIPTS ACT, copy of with annotations 1-19 rule of interpretation of IT. W. R. A 18 how may be cited U. W. R. A. 19 U. S. distillery warehouses embraced within Md. 374 list of states which have enacted 1 under sees. 40. 41 and 47 in order to validly pledge a receipt it must have issued to true owner or duly authorized agent. La. 14, 365 prior legislation providing different penalty for issuing dupli- cate receipts not so marked, repealed by Md. 17, 374 warehouseman required to make reasonable inspections to see that building is safe, N. V. 8 nothing therein to give warehouseman lien upon goods stored in fraud of ozvner's rights A''. Y. 10 facts stated and held not to have afforded zvarehouseman reasonable time to compel adverse claimants to interplead. N. Y. 7 facts alleged in complaint held sufficient to bring case zvithin sections 17 and 18 requiring adz'crse claimants to interplead. N. Y. 6 demand prior to suit not necessary zvhere goods haz'c been des- troyed A*". Y. 4 a proviso in a receipt attempting to limit liability held void under A'^. Y. 2 receipt held to meet the requirements of, to compel adverse claimants to interplead N. J. 7 makes no change in common law rule as to ordinary care,.N. J. 8 no lien where storage is in violation of terms of recorded chattel mortgage N. Y. 10 only "warehousemen" are entitled to the lien declared in the act, A^ Y. 9 INDEX. 1101 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. UNIFORM WAREHOUSE RECEIPTS ACT— Continued. page a casual bailee for hire, not a "warehouseman" within mean- ing of act, A'^. Y. 19 where receipt did not comply with, that goods removed under an attachment a good defense, ///. 210 UNITED STATES. See AUTHORITIES OF THE UNITED STATES. UNITED STATES BONDED WAREHOUSES. See BONDED WAREHOUSES. UNIVERSAL CUSTOM. See CUSTOM. UNSALABLE PROPERTY, disposition of where storage charges not paid Ga. 121 UNSANITARY, See SANITATION. USAGE. See also, CUSTOM. testimony of receivable when, Tenn. 845 cannot vary written stipulations, Mich. 434 USURY, when not available as defense by warehouseman Ga. 144 whether warehousemen's charges for procuring advances con- stitues, a question for jury, N. Y. 644 VALUATION, physical, of railroads by railroad and warehouse commission, Minn. 453 VALUE, defined, U. W. R. A. 19, Wis. 931 evidence receivable to show special value of lost goods,. .N. Y. 657 VENDOR'S LIEN. See also LIEN. lost, where negotiable receipt is taken in good faith, U. W. R. A. 16, Wis. 929 special, of five days on agricultural products, La. 353 nature of, considered, Mo. 551 VnNTfLATrON, for failure of proper, in cold storage, warehouseman liable,. La. 362 VERDICT. in proceeding to acquire site for public warehouse S. D. 830 VOID, warehouse receipt is, if goods not in e.vistence when issued.. III. 223 warehouse receipt, after delivery of grain, Ind. 229 WAIVER, none of warehousemen's lien by suit for charges Utah. 871 of tender of storage charges and receipt bv zvarchouscman, Minn. 490 by warehouseman of right to have receipt returned Colo. 90 of lien by stating no charges are due, Calif. 75 of warehouseman's lien, by holding goods for claim not em- braced in lien l,-k. 51 of warehousemen's lien by excessive demand for storage,. .N. J. 610 1102 INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PAGE WAREHOUSE. See also PUBLIC WARE^HOUSES, WARE- HOUSES. Itcld to be syiioiiyiiioits zvith "store lioiise" Mo. 549 WAREHOUSE BUSINESS. See also TOBACCO WAREHOUSE BUSINESS. who may conduct N. Y. 677 flour iiuuiiifacturcrs not engaged in N. D. 710 a foreign eorforation ivitli branches zvithin the State held to be "doing business therein" N. Y. 677 manufacturing company cannot conduct, Ind. 250, 256 one not engaged in cannot issue warehouse receipts, Ind. 257 organization of corporations to conduct, Ind. 239, 240, 241 WAREHOUSE COMMISSIONER, appointment of, tenure of office, vacancy, how filled Mo. 517 grounds for removal of Mo. 517 compensation of, and of assistants, Mo. 518 consent of, necessary for increase of storage rates, Mo. 526 may require sworn statements at any time from puljlic ware- housemen Mo. 528 to appoint deputy chief inspector of grain Mo. 530 to establish grades of grain, Mo. 533 may examine books of public warehousemen Mo. 534 to make annual report to Governor, Mo. 534 to examine and visit warehouses, when Mo. 534 may subpoena witnesses, Mo. 535 to make rules and regulations governing weight of grain,... Mo. 536 WAREHOUSE COMPANIES. See also CORPORATIONS. organization of Mich. 423, 424. 425 authority to incorporate, procedure, etc Mich. 423, 424 corporate powers of Mich. 424 may borrow money and issue bonds La. 348 WAREHOUSE LAWS. See also UNIFORM WAREHOUSE RECEIPTS ACT. penalty for violation, Del. 101. La. 352, Minn. 452, Mo. 516, N. J. 603, Okla. 748, Vt. 873 copy to be kept posted in public warehouses. Mo. 529, Okla. 747, S. D. 826 not applicable where property removed bv operation of law, N. J. 604 not applicable to private warehouses La. 352, Okla. 757 civil action against warehousemen for violation of, Mo. 530, Tenn. 837 prosecution under, to be name of State, Mo. 535 do not change liability of warehousemen respecting grain al- ready stored Mont. 577 violation of, misdemeanor, N. D. 709 if parts of held not valid, remainder to stand Wash. 907 held constitutional, Tenn. 854 WAREHOUSEMEN. See also PRIVATE WAREHOUSEMEN. PUBLIC WAREHOUSEMEN, defined by law, Ariz. 45, Ga. 118, Hawaii, 986, Ind. 234, Ky. 310, Mich. 416, Ohio, 717, Ore. 762, S. C. 812, Tenn. 836, U. W. R. A. 19, Wis. 931 defined by the courts Ore. 732. Pa. 787 INDEX. 1103 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. WAREHOUSEMEN— Co«//;;!a'(/. page if have interest in stored goods, must appear on receipts, U. W. R. A. 2, Wis. 921 liable for omission of essential terms from negotiable receipt. U. W. R. A. 2, Wis. 922 precluded from setting up title in themselves. U. W. R. A.. 6, Wis. 924 to furnish lists of personal propertv on storage to tax asses- sors, penalty ." Alass. 399 not embraced in "Factor's Act," N. Y. 621 to receive grain must procure license Ore. 763 must keep records containing description of stored goods,. .Ore. 767 to give notice to owner on receipt of freight Ohio, 718 common law liability of cannot be restricted Ky. 314 duty of those storing cotton seed oil Ky. 314 rights and obligations of not altered by warehouse receipts, Ariz. 44 must give warehouse receipt for property stored Ariz. 42 lien for freight charges paid by them,. .' Ariz. 46 must furnish statements as to their business whenever re- quired 111. 188 embezzlement by, penalty, 111. 193 liable in damages for failure to deliver goods on demand, . .Ida. 157 all, to make annual reports to state hay and grain commission, Ida. 159 not to be made parties to suit when title to the goods in issue, D. of C. 109 after termination of storage contract, become carriers for de- livery of goods, A^. Y. 633 not required to open packages left with Pa. 786 stored goods with notice of claim, holders subject thereto, Texas, 860 may niaintain action against one who injures goods zvhile in their possession, ][fo. 557 can assert no claim against goods unless shown on receipt,. Ky. 334 must sec that they are dealing tvith true owner, .Ky. 331 responsible where fail to show loss occurred without his fa'tlt La. 356 storage of their own grain prohibited, ///. 198, 200 have right to terminate storage contract, ///. 206 liable for injuries to employees resulting from defective ma- chinery, zvlien ///. 224 obligations upon warehouse receipts ///. 222 manufacturing company cannot act as, lud. 250, 256 have no better title to goods than the depositor Ala. 30 liable if thcv deliver cjoods to one holding unindorsed receipt. Ala. 39 may maintain trover in ozvn name for goods stored zvith them Ala. n goods held by one legally in owner's possession Ca. 127 must make reasonable inspections to see that building is safe. . . ' N. Y. 8 may maintain action against third person for toss or injurv to stored goods, Conn. 94 liable for -'njuries to person visiting zvarehouse Calif. 84 one who rents safe deposit vaults is a zvarehouseman within meaning of uniform zvarehouse receipts act N. .1. 19 1104 INDEX. Keferences to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. PAGE WAREHOUSE RECEIPTS. See also. CERTIFICATES OK IN- SPECTION, SAMPLERS RECEIPT. In General. essential terms U. W. R. A. 1, Wis. 921 conditions uiulor which terms, other tiian essential terms, may be inserted in receipts U. W. R. A. 2, Wis. 922 wiien alteration of will not excuse warehousemen. U. W. R. A. 5, Wis. 923 liability for misdescription of goods in U. W. R. A. 7, Wis. 924 description of goods in by marks or labels sufficient, U. W. R. A. 7, Wis. 924 which mav not be negotiated by delivery may be transferred by delivery, U. W. R. A. 13, Wis. 928 rights of persons to whom a receipt has been transferred, U. W. R. A. 14, Wis. 928 act does not apply to existing receipts U. W. R. A. 19, Wis. 931 definition of, ; . . Ariz. 42 who may issue,. .Conn. 93, la. 259, Kan. 293, U. W. R. A. 1, Vt. 873 general provisions respecting issuance of, for grain Mo. 523 when they may be issued for stored grain, Mo. 523 requisites of, by public warehousemen, Mont. 582 grain may be withdrawn by owner before issuance of Mont. 582 when to be issued and contents of Mont. 579, 580 when must be issued and what must contain Kan. 286 grain must be delivered upon presentation of, Ariz. 43, Ind. 230, Kan. 288, La. 351, Mich. 419, Mo. 525, Okla. 744, S. D. 822, Texas 858, Wash. 903 to be cancelled on delivery of grain III. 171, Ind. 229, Mo. 524 Okla. 744. S. D. 824 Wis. 942 to be marked, "registered for collection" on delivery of goods, 111. 183, 186 goods not to be removed, etc., until receipt surrendered,. . .Del. 101 provisions governing issuance and cancellation of, Ill- 172 not to deliver property until receipts surrendered for cancella- tion ' Ky. 315, La. 344 must be cancelled on delivery of goods, liability for failure,. Wis. 923 must be surrendered on delivery of goods Ariz. 45 goods not to be sold or removed without written consent of re- ceipt holder • Mo. 514 not to be issued until goods actually received. Ala. 22, Ark. 47. Del. 101, Ida. 155, la. 261, Kan. 295, Ky. 311, 315, La. 350, Md. 375, Mich. 418, 432, Minn. 481, Mo. 513, N. J. 601, 604, Okla. 755, S. C. 806, Tenn. 836, Texas 858, U. W. R. A. 17, Wash. 908, Wis. 929, Wyo. 977 wilful alteration or destruction of, penalty, Ind. 238, la. 262, Kan. 296, Mich. 433, Wis. 930 penalties for violation of laws pertaining to la. 262, Kan. 296 fraudulent sale, negotiation or pledge of, penalty Va. 890 to be consecutively numbered, Ky. 314 Minn. 477, Mo. 523, Mont. 579, 580, Wis. 941 duties of warehousemen when grain out of condition, 111. 178, Ind. 230, 231, Kan. 291. Ky. 321, Mo. 528 cancellation and consolidation of receipts when, Ind. 229, Kan. 287, Ky. 318, Mont. 580 what it represents where grain commingled, Me. 370 warehousemen precluded from issuing against own goods, Texas, 859 INDEX. 1105 References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. WAREHOUSE RECEIPTS— Continued. ' page cotton press not to issue unless cotton on hand La. 344 what must appear thereon. Ida. 155, 111. 183. Ind. 238. Mass. 394. Mich. 418. 431. Minn. 455. 466. N. C. 678. N. D. 691. 692. Okla. 742. S. D. 821. Tex. 856. Wis. 921. 941 when to issue and what to contain 111. 183, Mich. 431 forrn of prescribed Ariz. 42. Ida. 155. Wash. 910 maximum charge for storing, etc., grain to be printed on,. Minn. 466 uniform form of. for cotton, to be provided by commissioner of insurance and banking Texas. 857 contents of those issued by public warehousemen Okla. 755 what those issued for grain must contain Ky. 317 what must show when for stored oil Ky. 314 how issued and what to contain La. 350 declaration to be filed before issuance of. Mich. 431. Minn. 480 statement to appear on back of Mich. 432. Minn. 480 may be transferred by indorsement Ark. 49 what an indorsement of, warrants Mich. 418 consent of holder, necessary for removal of goods S. C. 807 what other than required terms may be inserted in Wis. 922 new receipts, when may be issued Okla. 743 warehousemen precluded from denying receipt of grain... S. D. 824 only to be issued by licensed warehousemen Va. 877 prohibition against sale of goods, when outstanding Va. 878 those issued by LT. S. distillery warehouses subject to Uniform Warehouse Receipts Act, Md. 374 breach of trust by on holding, penalty Md. 376 conclusive evidence against warehouseman issuing same... Miss. 504 declaration must be made and recorded l)efore issuance of. la. 260. Kan. 294 existing rights to issue or negotiate not impaired Kan. 297 penalty for negotiating receipt without disclosing an attach- ment Me. 369 record of to be kept by warehousemen Me. 369 must issue, on deposit of goods Ky. 311 only distiller can issue for whiskv in distillery bonded ware- house. ■ Ky. 310 registration of. by warehousemen required la. 260. Kan. 295 presumptive evidence of ownership of goods la. 262 requirements for those issued for tobacco Kv. 32^^ requirements governing those issued for oil, Ky. 314, 315 statement of recordation of declaration must appear on hack of la. 260. Kan. 295 tobacco warehousemen may agree to bo liable for loss or damage from any cause Ky. 323 must show condition of article received Ala. 21 goods not to be delivered without written consent of receii)t holder Ark. 47 warehousemen not liable where contents of packages not in ac- cordance with brands and marks Mont. 566 do not alter rights or obligations of warehousemen \vz. 44 goods not to be transferrerl without consent of holder of. .,\riz. 4"? warehousemen must give, for stored goods Ariz. 42 lien of landlord or laborer good against purchaser of .\rk. 50 warehouseman required to give on receipt of goods Fla. 114 title to stored goods passes on delivery of indorsed receipt, .Ga. 119 70 1106 INDEX. References to laws are prinmd in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. WAIvl'.HOL'SE RECVAVV^^CoiUiiiiiCii. page rules and rcsulalioiis respecting, Ida. 160 if grain stored separately it must be stated on Ida. 153, 155 are assignable 111. 182 brands and marks on those, from warehouses of class C, ...111. 182 manner of issuing, class A 111. 171 if grain separately stored to be shown tliereon HI. 170 outstanding to be shown in weekly statements, 111. 165 requisites of issued by warehousemen of class A Ind. 228 new receipts to be issued where tliere is partial delivery of grain Ind. 229 organization of company to guarantee Ky. 310 provisions respecting, issued by warehousemen in other states, Ind. 236 record to be kept of, Ind. 238 must be given when goods received Ind. 234 evidence in any action against warehousemen, Ind. 234 receipt on, for use in case warehouseman purchases same, .Minn. 467 issuance of, when one outstanding forbidden,. .' Ind. 235 act in relation to extends to ganger's receipts Ind. 235 railroad and warehouse commission to make rules respecting, Minn. 457 for cattle, sheep or hogs, etc.. who may issue Minn. 480 warehouseman to keep register of Minn. 480 to be registered in book kept by warehousemen Mich. 432 person holding, must consent to removal of goods N. J. 602 duty of warehouseman to deliver to depositor Ore. 762 of private warehousemen must be so marked Okla. 758 sign, "public warehouse" must be displayed on building l:)efore issuance of, Vt. 873 how act pertaining to to be construed Wis. 930 must be given l)y proprietors of tobacco warehouses Ohio, 727 not to be issued unless grain inspected and graded .Wis. 960 must be issued upon receipt of grain Wash. 902 defined, Calif. 80 issued bv factors against own goods are not warehouse receipts, III. 217 if wareliouscinaii has right to sell the goods he has right to issue receipt for same, Ky. 333 iiiay issue receipt to himself for own goods Ky. 334 implied authority to president of zvarehouse company to issue receipt in his mvn name A^. Y. 671 issued hv zvarehouscman to himself and pledged, owner pro- tected^ " Ga. 131 fraudulently taken by agent in ozvn name, ozuner protected,. Ga. 141 must not be issued against zvarehouseman' s own goods, Pa. 794 issued bv owner of goods in his ozvn store are not "warehouse receipts," ' Mo. 559 issued hv superintendent to ozvner of factorv, not a warehouse receipt ". N. Y. 670 against warehouseman's own goods embraced in sees. 124 and 125 Criminal Code,. ///. 183 parole evidence admissible to z'ary, zvhen Ore. 777 where ambiguous, parol evidence receivable Va. 893 open to explanation by parol evidence, Ga. 140 parole evidence admissible to show contract of storage,. .Wash. 915 parol evidence not admissible to vary ///. 232, la. 276, A''. Y. 664 INDEX. 1107 References to laws are printed in romanj^ those to decisions in italics; the letters U. W. R. A. indicate references to The Uniform Warehouse Receipt Act. WAREHOUSE RECEIPTS— Continued. page in so far as a contract cannot be varied by parol, Kan. 507 constitute a contract, parol evidence not receivable to vary, exceptions, Ind. 256 delivery to holder of, when chattel mortgage recorded con- stitutes conversion, Ala. 30 delivery without return of, warehouseman protected, when,. .111. 223 delivery of, without return of, warehousemen liable, Neb. 596 entitled to goods upon surrender of, to warehouseman,. .. .III. 223 bona fide holder, protected ///. 221 one taking for prior indebtedness is not bona fide holder,. .Ky. 336 bona fide holder protected although goods not actually in store, Ky. 336. 337 only innocent holder may maintain action for purchase price where goods sold, Tenn. 850 transfer of, for goods in bonded warehouse passes title to goods represented, Pa- 795 delivery of commingled goods bv, and bv bill of sale, dis- tinguished, .' : . N. y. 648 sale of commingled goods by transfer of, valid, AT. Y. 648 assigiiment of, passes all rights in Minn. 498 effect of indorsement and delivery of, I^i- 221 indorsement of receipt not necessary to pass title, Ala. 40 essential requirements for valid transfer of Colo. 91 delivery of, equivalent to delivery of the goods,. .Ind. 256, Minn. 497 transfer of, a symbolic delivery of goods Te.vas. 869 valid tender may be made by..'. ///. 128. Mich. 438, A''. Y. 664 represents the property itself, Ala. 36 best evidence of title, Calif. 80. Ga. 128. 145 represents title to the goods of which owner cannot be deprived by act of zvarehouseman Calif. 77 distiller estopped from denying he is a zvarehouseman where he issues, Pa. 796 warehousemen estopped by, to deny receipt of goods S. D. 821 question whether statement in as to delivery of goods to ven- dor, part of contract, A'^. Y. 663 warehousemen estopped by statements in A^. Y. 665 statement in, that goods "in good condition" binding on warehouseman, A^. Y. 633 statements that goods in good condition not conclusive. III. 201. N. Y. 659 warehousemen held not cstopf^cd by statements in to shozv con- tents of packages Wis. 974 warehousemen not bound by description of goods in receipt, when A^ F. . 664 statement in. "contents unk}iozvn" held to protect warehouse- men ///. 217 warehouseman estopped to deny possession of goods shozvn in his receipt Calif. 81 must he issued bv a zvarehouseman f\i. 794. IVis. 973 grain commingled, held to he a bailment Ohio, 730 contracts of bailment and of sale la. 271, 272 held to constitute sale by way of mortgage ///. 217 no penalty provided for failure lo put dislinquishinq marks on. III. 217 acceptance of makes taker liable for storage chanics. III. 204. Pa. 788 11 OS INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. W ARKHOL'SE RECEWTS—Contiinicd. page who may issue, Colif. 80 (j» agreement to ship goods does uot constitute Mo. 561 where delii'ery made to true owner zvitlunit surrender of, burden on warehouseman to slwiu same Miss. 509 7carehousei>icn's defenses zvhere zvhcre he issues receipt by mistake, Miss. 509 zvho bona fide holder, question for jury Neb. 597 need not be in a)iy (^articular form Neb. 596 effect of, qualified indorsement of, Neb. 596 sale of cotton by delii'ery of receipts Ala. 26 must be issued by a tvarchouseman, ....Md. 391 act 1876 not applicable to U. S. bonded warehouse receipts, .La. 366 attached to draft, to be surrendered upon acceptance, La. 366 facts stated and held sufficient description of goods in La. 364 entries on stubs not evidence of present ozvncrship Ky. 341 duty of warehouseman in making a nczv issue of receipjs to procure and cancel all old ones Ky. 340 proz'isions in respecting shrinkage, binding Ky. 339 by zvarehouscman who had not license, void, when Ky. 339 what must appear on to protect unpaid vendor Ky. 334 warehousemen can assert no claim on the goods not shown on receipt, Ky. 334 constitutes a contract between, the parties, Ky. 333 shipping grain out of state zvithoiit return of, a crime, la. 265 tveighmaster's ticket held not to be la. 262, 275 receipt described and held sufficient to enable warehouseman to require bailor and adverse claimant to interplead under Uniform Warehouse Receipts Act A'^. /. 7 complaint must allege to zvlwm plaintiff advanced money on the receipt ^Hci- 40 complaint must allege indorsement to plaintiff, Ala. 39, 40 only legal holder can maintain action upon Ala. TH effect of transfer for gambling debt .Ala. 36 not a contract zvithin meaning of lazvs declaring gambling con- tracts void ; 4la. 36 facts stated concerning certain custom in regard to. held uot to be a good custom Ala. 40 essential terms, facts given held to be a compliance N. J. 2 zvarehouscman agrees to become bailee for every transferee, Ark. 54 construed against zvarehouscman Ark. 54 delivery to one not entitled bv terms thereof, zvarehouscman liable Ark. 54 waiver of right to have receipt returned .Colo. 90 question of fraudulent tran.'^fcr for determination by jury. ' Colo. 91 presumption receipt non-negotiable, when Calif. 81 pre-e.visting debt sufficient consideration for transfer of, .Calif. 81 weighing tags held not to constitute Calif. 8? delivery when receipt outstanding, quaere Calif. 82 when transfer not a preference under insolvency act Calif. 82 intention of parties in transfering receipt governs Calif. 82 "damage by the elements" held to mean act of Cod Calif. 68 issued in name of one not depositor Calif. 80 allegations as to ownership of property held sufficient on gen- eral dent urrer, Calif. 71 INDEX. 1^^^ References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. WAREHOUSE RECEIPTS— Continued. page failure of depositor to surrender not sufficient excuse for re- fusal to deliver goods, when, .' Calif. 70 pledge of, issued without knowledge of ozvuer of goods, void under section 40 of Uniform Warehouse Receipts Act, La. 14 warehouseman liable where custom to insure proven, although contrary to terms of receipt Ga. 140. 145. 148 may be subject of larceny • -Ca. 146 evidence as to indorsement by one since deceased receivable, Ga.UZ advances must be stated on Ga. 140 when need not be set forth in petition, Ga. 140 words "all cotton stored with us fully insured" held not to constitute a contract to insure, Ga. 138, 139 not necessary to present where warehouseman refuses to de- liver goods Ga. 128 that goods been removed under an attachment a good de- fense, when, fll- 210 a sampler's ticket it not ^H- 212 issued by private warehousemen are quasi negotiable ///. 216 "free storage" in. means only for a reasonable time ///. 219 warehousemen's obligations upon stated, HI- 222 construed in the light of commercial usage lud. 256 two essential representations in ^"d. 256 contract of bailment established by f"d- 248 tender of and charges max be waived bv zvarehouseman. Minn. 490 reference on, to pavments to be made constitutes notice to purchasers of, ..'..... Minn. 495 construed and held to constitute a contract of insurance against jlre, Minn. 496 written parts control over printed Minn. 496 purchaser of must exercise ordinary prudence .Minn. 498 construed in accordance with law of state where grain located when issued Mmn. 498 alf'ouah never issued, owner entitled to recover where goods destroyed, N. Y. 6M issuance before poods in storage, evidence of N. Y. 673 issuance of without notice of claim for advances, ivarehnuse- men protected, ...N.Y. 669. 670 facts stated, and warehousemen held not liable, where he per- mitted receipts to remain outstanding after goods delivered. Okla. 761 failure of warehousemen to pav state tax does not invalidate, Tenn. 849 postal card notifying con.ugnee of arrival of goods not taxable as warehouse receipt • ' "■ ' ^'* goods .-stored on leased premi.<;es subject to distress for rent, al- though receipts outstanding ■ n 770 mu.^t disclo.se contract of storage ;•■•;•;, ,' ' r' statement in that bailor has lien on goods for full value suf- ficient to maintain action for unlawful detention,. ... .Oliio^ /,■>« max be i.<;sucd bv company authori.r:ed to manufacture flour and to store goods _ • •• • r, j,q. in nmbif/unus terms, questions for jury *' "• o^' As Collateral. ~ ,,. may be used as '*i''^ ""^ 1110 iNor.x. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. W AREHOUSE RECEIPTS— Continued. page no warranty of receipt implied hy acceptin,<> payment c^f debt secured by receipt II W. R. A. 16, Wis. 929 vendor's lien not applicable La. 346 where wrongful, lien of owner valid even against third per- sons La. 346 sale upon default, procedure La. 346, 347 sale of, in case of Ind. 236 pledgee has power to sell, Ky. 312 not for warehouseman's own indebtedness, proviso Mich. 418 law limiting loans by banks not applicable to, when Mo. 545 goods must be insured Mo. 545 affiidavit required, penalties, La. 345 warehouseman not to issue unless owner of goods Wyo. 977 by warehousemen in excess of advances, prohibited Tenn. 837 one holding as makes no warranties Wis. 929 not to be issued unless goods actually in storage, Ky. 311. Mo. 514, N. J. 601 against warehouseman's own goods, binding Ky. 337 to warehouseman, against own goods, invalid la. 261 against own goods, creditors protected Pa. 796 by warehouseman to creditor, in nature of mortgage Mich. 436 in name of warehouseman, valid pledge Ala. 35 in name of pladgee, issued by warehouseman against his own goods _ .' Minn. 497 in fraud of owner's rights, owner protected 4la. Zl if issued in fraud of ozvner's rig 'its not valid^ under Uniform Warehouse Receipts Act, La. 14, 365 by factor, owner protected, La. 348, 357, 358, 359, 363 pledgee has claim on only factor's interest in the goods,. .Ala. 39 by factor, valid, although unauthoriced Ohio. 737 under section 40 of Uniform Warehouse Receipts Act pledge of receipt issued without authority of owner of goods void,. La. 14 transfers possession as against creditors Mo. 560 when taken for pre-e.xistinq debt, pledgee not bona fide Jwlder, Mo. 560 dcliverx of goods in settlement of antecedent debt not such a sale as will defeat pledgee, Pa. 796 statute miist be strictly complied with .•••••.• -^^^ ''^^ a non-negotiable receipt of private warehouseman, inferior to rights of attaching creditor _ Mass. 412 by vendee, with non-ner/otiable receipt, vendor's lien protected, pledge by, valid ' ^^'""- 492 pledgee may maintain action in his own name .^. D. 824, 833 not affected bv statute relating to chattel mortgages. Colo. 88, Wis. 975 pledgee may maintain trover, . ._ JVis. 975 must be a valid warehouse receipt Wis. 975 facts stated and held posses.non not transferred Wis. 97S unlawful negotiation hy pledgee, pledgor protected Wos'k 916 national banks authorized to take, 01x10,737 second pledge of same receipt, valid Ohio, 738 facts stated and held sufficient to constitute change of pos- session, Tenn. 851 goods set apart and marked bv plackards held sufficient delivery. Tenn. 851 ■ bank must show itself to be innocent holder Tenn. 851 INDEX. nil References to laws are printed in roman; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. WAREHOUSE RECEIPTS— Contiuued. page bank taking is a bona fide holder, ..Pa. 795 warehousetnen liable to bank where goods delivered without return of receipt, .R. I. 804 issued by warehousemen to secure, own debt, not z'alid unless goods in storage when receipt issued, Ore. 775 pledgee does not assume liability for storage charges -V. Y. 666 when not indorsed, pledgee holds subject to equities, Ind. 257 where other goods substituted, pledgee protected ///. 221 legal title is vested in pledgee, _ ^H- 222 right of pledgee to maintain action on, HI- 222 other goods substituted, pledgee protected, 111.209 pledgee 7iiay maintain action of trover, Ga. 134 delivery by, valid pledge, *^^' J40 rights of pledgee ^'^ 1I9 not indorsed, pledgee protected, Ga. 14Z that note was usurious no defense for warehouseman,. . ..Ga. 144 pledgee protected as against unpaid vendor, C olo. 91 indorsement passes title good against creditors and purchasers. Ark. 55 advances must appear on receipt in order to precede pledgee's claim, "^y- ^^^ when goods not in store, subsequently stored and new receipts pledged, valid, ir' "^Xa fi. must contain distinguishing marks, ■ • -t^y- ■'•^^j. ■^■^° bx a warehouseman of a receipt issued by him in name of 'another, void, .• ^V- -^•^^' not duty of pledgee to see that surrendered receipts are can- celled Ky. ii^ if pledgee retains receipts after payment of debt presumption is he holds same for other indebtedness, • /^y- -i"*^ conversion to sell property not covered by pledged receipts, Ky. -341 rights of pledgee superior to those of owner La. 364 delivery to pledgee of receipt all that is necessary La. ib^ as effectual as actual pledge of goods represented, .^lo ^g^ pledgee protected as against ozvner of the goods Met. JVi complaint must allege to whom plaintiff advanced money upon the receipt, : "^f- ^^ valid pledge by unindorsed negotiable receipt... /t'a. on bank liable if pledgor of, not true owner of goods "Ha. -5/ Duplicates. must be so marked, Ala 22 Ariz. 43, 45, Ark. 47. Del. 101. Til. 171. Kan. 286. Ky. 317 323. La. 345. Mich. 419, Minn. 477. 485. Mo. 514. 523. Mont 566. 580, N. T. 602, N. D. 702. Okla. 755. 758. S. C. 807 Tcnn. 8.36. Va. 877. U. W. R. A. 3. Wis. 922 warranties of warehousemen in case of U. W. R. A. 6, Wis. 924 warehousemen must issue on request \riz. 4.-i issue r)f not so markcfl a crime, penalty. l'. W. R. A. 17 Wis. 929 prohibition apainst issuance of Ky. 312, Wyo. 977 issued b\' mistake, 7varehousemen not liable, when.. .... .Ohio. 738 purchaser after delivery of goods may recover against seller. Ga. 145 1112 INDKX. References to laws are piinteii in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. WARKHOrSK KECKIPTS— C'<);;//;,/a-(/. page f>nor Iciiislatioii. trofidiiic/ different l^ciitilly fur issiiiiuj not so marked, repealed bx Uniform Warehouse Receipts Act, Md. 17, 374 issuaiue to one takiiui in good faith constitutes actual fraud. Ky. 341 coufisci fees recoz'crable against ivarchouscnum in case of, Ky. 341 nezc receipts valid u/'on surrender of old Ky. 340 Exemptions in, restrictions respecting U. W. R. A. 2, Wis. 922 not to restrict lial)ilitv as provided l)v laws, 111. 172, Kan. 287,' Kv. 314, 318, 'La. 351, Mo. 515, 524, Mont. 581, N. D. 691, Okla. 756, S. IX 821, Wis. 943 not permitted, exception Texas, 859 prohibition against, respecting grain Okla. 744 do not excuse "warehousemen for damages resulting from negli- gence .Ark. 54, Ky. 2>i2. Minn. 494, N. Y. 672 in fine type attempting to limit value held not binding,. . . .IVash. 915 in receipt of express co))ipanv limiting liability, sustained, R. I. 804 where delivery several zveeks after receipt of goods held not to constitute contract of storage N. ]'. 648 specified exemptions in sustained as not contrary to public policy, Calif. 68 cannot waive notice of sale for storage charges N. Y. 645 warehouseman cannot limit liability in ///. 216 against liability for leakage, upheld Calif. 78 do not embrace injury from lack of ordinary care Miss. 509 against liability for loss by fire does nof excuse duty of ordi- nary care Calif. 69 "at owners risk" does not relieve of duty of ordinary care, Colo. 92 limitation of liability to an amount stated. 7U)id. when N. Y. 2 li)niting liability on any article to specified amount, valid, ..N. Y. 665 Fraudulent, for warehouseman's own goods and not so stating, crime, penalty U. W. K. A. 17, Wis. 930 penalty for issuance of, Ala. 25. Alaska, 984, Ariz. 43. 44. 111. 182. 193. Ind. 232. 234. Me. 371, Mass. 397, Mich. 429, Minn. 481. 484, Mo. 525, Mont. 566. N. D. 702, Ohio, 717, Okla. 744, 758, Ore. 771, Pa. 779. U. W. R. A. 17. Wash. 910. Wis. 929 liability of warehouseman in case of fraudulent alterations. U. W. R. A. 5, Wis. 924 crime to issue a receipt when goods not received, penalty, U. W. R. A. 17, Wis. 929 forgery of, penalty Va. 879 penalty for trading in la. 265 sale, pledge, assignment, etc.. of. forbidden Ind. 236 holder of can maintain replevin JVis. 975 by debtor against his own goods, void as to other creditors, Ohio, 734, 35 warehousemen estopped by Ohio.. 736 issued bv bookkeeper without authority, warehousemen not liable, ' : Tenn. 851 warehousemen estopped to deny receipt of goods S. D. 831 indictment of warehousemen for, requisites Ore. 77?> INDEX. 1113 References to laws are printed in roman;^ those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. WAREHOUSE RECEIPTS— Co»/nn(rc?. page issued bv {'resident of warehouse compatix in his own name, N. Y. 670 implied authority to president of warehouse company to issue receipt in his own name, < A'^. V- 671 stating goods in "free warehouse" when in bonded, warehouse- men liable for tax, ^- Y- 642 when none of goods in storage, owner's rights not affected. N. Y. 663 when goods not in store, innocent holder protected, Ga. 143 issued to secure debt owed by warehouseman and to one who had no grain in store, void as against oivners of grain, ..la. 275 title acquired by one taking, when all goods described not ac- tually in storage -V. Y. 662 unless they truly represent the stored goods... ///. 222 if goods not in existence when issued, it is void,.... ///. 223 issuance of receipt against own goods and pledging same, a crime, . . .- '''■ ^1° warcJwuseman's lien not lost because of issuance of ///. 204 purchaser of cotton protected where there has been an at- tempted pledge ■. ^' ^-x" ^o- warehouseman not bound by forged receipt Calif ».i proper evidence in case of, Calif. 83 void if delivered in furtherance of a gambling contract la. 27s issued by a manufacturing company against machinery to be used in Us business, void /^ A'- '''+^ Irregular, receipt described and held not a warehouse receipt Tenn. 849 ;■/ used as collateral, actual notice must be brought to ware- housemen .Fa. 789 issued by a mill owner as warehousemen does not constitute. If ash. 915 facts stated and held sufficient Wash. 916 issued by one not a warehouseman, not valid Ind. 257 need no't be in form prescribed by statute, zvhen ...Minn. 496 bv private warehouseman against own goods, not valid, cred- 'itors protected •. /"^- -53. 2.57 by public warehouseman to secure own debts, void Ind. 256 held valid and sufficient to constitute a pledge _ Ind 253 zvarehouseman estopped by when /^ on. MV. .W8 warehouseman not estopped by, zvhen H'""' con new receipt may be issued in case of,. !<"V' cc owner protected where unindorsed receipt lost Ark. 55 eijuilv court has jurisdiction to compel delivery in case of,..C,a. 145 Negotiability, warehousemen liable for failure to msert essential terms, U. W. R. A. 2. Wis. 922 provision in. that non-ncgotiablc, void,..U. W. R. .^. 3. Wis. 922 defined U. W. R. A. .3. Wjs. 922 must be cancelled when goods delivered U. W. R. A. 4, \\ is. 923 partial deliveries must be stated thereon. ..U. W. R. A. 5. Wis. 923 procedure when lost or destroyed U. W. R. A. 6, Wis. 924 eoods ronre^cntcd by not subject to attachment, V. W ]i. A. 9 Wis. 925 creditors remedies to reach . .U. W. R. A. 9, Wis. 925 must .state charges for which ben is claimed, U. \\ . K. A. 10, W IS. 926 1114 IN1>EX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. WAKKHOLSK RECEIPTS— ra»//;;»r(/. page when may be negotiated by delivery, ... .U. W. R. A. 13, Wis. 927 methods of indorsement of, U. W. R. A. 13, Wis. 928 who may negotiate U. W. R. A. 14, Wis. 928 rights of those to whom negotiated, U. W. R. A. 14, Wis. 928 when transferred bv delivery transferee may compel indorse- ment .' U. W. R. A. 15, Wis. 928 warranties bv one who negotiates or transfers by delivery, U. W. R. A. 15, Wis. 928 indorsers not liable for any failure on part of warehouseman or other indorsers........ U. W. R. A. 15, Wis. 929 when negotiation not impaired by fraud, mistake or duress, U. W. R. A. 16, Wis. 929 negotiation after sale or pledge of goods or receipt, valid. when, U. W. R. A. 16, Wis. 929 negotiation defeats vendor's lien U. W. R. A. 16, Wis. 929 delivery of goods without obtaining, a crime, penalty, U. W. R. A. 18, Wis. 930 negotiating, when one has not title to the goods, a crimr, penalty, U. W. R. A. 18, Wis. 930 declared negotiable by law, Ariz. 44, Ark. 48, Del. 100, Fla. 114. Ga. 119, Ida. 156, Ind. 232. 234, Kv. 311, La. 348, 351. Mich. 418, Mo. 515, N. C. 678, Okla. 756, Tenn. 837, Texas, 859, U. W. R. A. 1, Wash. 909, Wis. 921 declared negotiable unless marked non-negotiable, .Ala. 23, Wis. 920 how transferred _. Mo. 515 must be cancelled on delivery of goods, Iia1)ility for failure, .Ala. 23 effect of transfer of, N. J. 603, Okla. 744 rights of transferee ; S. C. 807 title to stored goods passes on indorsement and transfer of. Me. 368, Mass. 394, Mo. 525, N. D. 699 are transferable by indorsement Minn. 471, 480, Va. 877 those issued for tobacco declared to be Ky. 323 must be surrendered before delivery of goods, Ark. 49 declared to be assignable 111. 182 to describe stored goods, S. C. 805 to give for stored goods when, contents of S. C. 805 transfers must be recorded with warehouseman Me. 369 not in the sense of bills of exchange. Ala 36, Ark. 55, ///. 219, 220. Kan. 307, 308. Ky. 342. Mass. 412, Mo. 559, N. Y. 666, Ohio, 737, Ore. 776, Tc.vns. 867 held to be, the same as bills and notes. Ky. 334, 335, 341, jyis. 973 parole evidence adniis.mble to vary, _. Ore. 777 transfer to assignee of holder, held not negotiation Mo. 559 held quasi negotiable securities N. Y. 663 issuance and delivery of. passes title to goods represented. N. D. 699, 714 delivery of passes title to the goods Mich. 438, N.^ Y. 666 title passed by transfer of receipt without indorsement,.. .Mtnn. 497 legal title to property represented, vests in holder for value, .Va. 893 only the interest of 'holder passes /,P^99n 991" what assignee of receives 'I'- jy}'- ^;£' effect of transfer • • • ■ ■ ; ' V /' transfer of receipt equivalent to actual dchvcrv ^f' th^^<]^""-'- ^.. Ga. 141, 142. ///. WEIGHT CERTIFICATES. . , . not to be issued except by bonded state wcighmaster. penalty, Mo. 537 WEIGHTS, , , ^ ,., .. must conform to U. S. standard .•••••• ^'•^y\ ""^ chief grain inspector to furnish, of grain, when requested, Kan. 293 WEIGHTS AND MEASURES. use of false, prohibited, penalty Wis. vo/ WESTERN TOBACCO. ^ to be so branded ^^- ^^'^ WHARFINGER'S RECEIPT. r , :a^ when it docs not pass title '•'"■ ''+'' WHARVES, „, ,04 jurisdiction of inspector of tobacco over i\i<>- >^"-+ WHISKY, , . . , T. . ^in only distiller can issue warehouse receipt for. when K>- >^n' WHOLESOME, p^^ 783 denned HIS INDEX. References to laws are printed in roman ; those to decisions in italics; the letters U. W. R. A. indicate references to the Uniform Warehouse Receipt Act. iriFE, PAGE delivery to wife of bailor on forged order, bailee liable,.. N. Y. 634 iriLFUL. fiolatioii of warehouseman's duties must be stwzvn to recover exemplary damages, ^O- 261 WITHHOLDING, of grain from public store, when and how, Kan. zov WITNESSES, , ^^ .„ warehouse commissioner has power to subpoena, Mo. tidp lioard of commissioners may compel attendance of, ...Okla. 753 may be examined in connection with business of pul)hc ware- housemen, I'l- ^°" LAW LIBRARY UNIVERSITY OF CALIFORNU LOS ANGELES MONOLITH PORTLAND CEMENT COMPANY UC SOUTHERN REGIONAL LIBRARY FACILITY I ■ r li ; i' ii: I'l iiii ii ilii i ' ' ' li II iliililiii III ill liii Ii illi AA 000 744 329 4