60 P. 839 | Or. | 1900
after stating the facts, delivered the opinion of the court.
“No 1.
Silverton, Or.; Sept. 7, 1891.
“Received from John Gash one thousand two hundred and ninety-four 40-60 bushels of good, merchantable wheat, to be forwarded to Oregon City, Oregon, and stored with the Portland Flouring Mills Co., subject to*487 the following conditions : W. E. Loughmiller & Co. are to have the first privilege of purchasing this wheat for cash at any time the storer concludes to sell, and said wheat is subject to storage charges of two and one-half cents per bushel, and freight charges from shipping [point] to Oregon City. Upon demand, this quantity of good, merchantable wheat will be delivered to the storer, sacked, upon the payment of the above-mentioned storage and freight charges, and four cents per bushel for sacks; but no order of storer will be accepted by the Portland Flouring Mills Co. unless countersigned by W. E. Loughmiller & Co. But in no case shall W. E. Lough-miller & Co., or the Portland Flouring Mills Co., be held liable for accidental loss or damage to said wheat by the action of the elements.
“W. E. Loughmiller & Co.
“Per J. A. L.”
“1,294 40-60 bushels.”
The observation of Andrews, J., in Briggs v. Partridge, 64 N. Y. 357 (21 Am. Rep. 617), that “persons dealing with negotiable instruments are presumed to take them on the credit of the parties whose names appear upon them, and a person not a party cannot be charged upon proof that the ostensiblé party signed or indorsed as his agent,” is a clear statement of the law, and supported by
A very satisfactory case upon this subject is Shaw v. Railroad Co. 101 U. S. 557. In that case the question was as to the right of a purchaser from a thief, for value, and without notice, of a bill of lading issued in Missouri
Again, after observing that bills of exchange and promissory notes are exceptional in their character, pass from hand to hand as coin, and the interests of trade require that a bona fide purchaser for value should not be bound to loot beyond the instrument, the court proceeds : ‘ ‘ The reason can have no application to the case of a lost or stolen bill of lading. The function of that instrument is entirely different from that of a bill or note. It is not a representative of money, used for the transmission of money, or for the payment of debts or for purchases. It does not pass from hand to hand as bank notes or coin. It is a contract for the performance of a certain duty. True, it is a symbol of ownership of the goods covered by it — a representative of those goods. But, if the goods themselves be lost or stolen, no sale of them by the finder or thief, though to a bona fide purchaser for value, will divest the ownership of the person who lost them, or from whom they were stolen. * * * Bills of lading are regarded as so much cotton, grain, iron, or other articles of merchandise. The merchandise is very often sold or pledged by the transfer of the bills which cover it. They are, in commerce, a very different thing from bills of exchange and promissory notes, answering a different purpose and performing different functions. It cannot be, therefore, that the statute which made them negotiable by indorsement and delivery, or negotiable in the same manner as bills of exchange and promissory notes are negotiable, intended to change totally their character, put them in all respects on the footing of instruments which are the representatives of money, and charge the negotiation of them with all the consequences which usually attend or follow the negoti
We are of the opinion, therefore, that a warehouse receipt is not negotiable, within the meaning of the rule prohibiting the admission of parol testimony to charge one not bound upon the face of the instrument, but in that respect it is a simple contract, and such evidence is admissible to show that, although executed by and in the name of an agent, it is in fact the contract, of the principal, and he is bound thereby : Barbre v. Goodale, 28 Or. 465 (38 Pac. 67, 43 Pac. 378).
It is contended, however, that, even if the receipts are not negotiable, they are nevertheless presumptively the contract of Loughmiller & Co. alone, and plaintiff cannot recover upon either the first, third, or sixth cause of action, for the reason that there was no evidence to rebut such presumption, or to show that Loughmiller & Co. were in fact defendant’s agents. A considerable portion of defendant’s brief is devoted to the discussion of' this question, which we regard, however, as one of fact for the jury, and not the court. There was evidence given at the trial on behalf of plaintiff, tending to show, and from which the jury were justified in finding, that Lough-miller & Co. were in fact the agents of defendant, and received the wheat and executed the receipts as such. It is unnecessary for us to incumber this opinion by a reference to the testimony in detail. It is sufficient to say that we^have examined it with much care, and are satis
It is next claimed that plaintiff cannot recover upon the second, fourth, and fifth causes of action, — those representing the claims of Frizzell, McNichols, and McAlister, —because of a failure of proof. The evidence offered to establish these several causes of action consisted of load checks, and the oral testimony of witnesses that the wheat was received upon the same terms and conditions, and under the same contract, as that of the other parties. The load checks are all substantially the same. The following may serve as a specimen :
“No. 56. Aug. 23. -, Or.,-, 1893.
Received by R. T. McNickle, by W. E. Loughmiller & Co., for the Portland Flouring Mills Co.,-bushels, 3,835 lbs., good merchantable wheat, to be forwarded to Oregon City, and there stored in the P. F. M. Co.’s warehouses for the benefit of the owner. No. of sacks returned, 20 sacks.
W. E. Loughmiller,
Weigher.”
It is claimed that these load checks constitute the contract under which the wheat was received by Loughmiller & Co., and that they do not support the allegations of the complaint. But the evidence shows that when a farmer delivered a load of grain it was the custom to give him a load check as an evidence thereof, and when he completed his season’s hauling a receipt was issued for the entire amount of grain delivered, in form the same as the one heretofore set out, and hence the load checks do not evidence the contract under which the wheat was received, but are simply memoranda of each load of wheat as it was delivered; and so parol evidence to the effect that the wheat represented in the second, fourth, and fifth
Next it is claimed that plaintiff cannot recover upon any of the causes of action, because, if defendant is under any-liability to plaintiff, it is in tort, and not contract. This contention is based upon the theory that Loughmiller & Co. were not the agents of defendant. But, as we have already seen, there was, in our opinion, sufficient evidence to carry that question to the jury, and hence this position is without merit.