54 Kan. 109 | Kan. | 1894
The opinion of the court was delivered by
Various objections are raised by the defendant in error to the consideration of the record in this case. We think the certificate of the clerk to the transcript is sufficient, and that there is no difficulty in determining what it contains, or what is referred to in the petition in error as a transcript.
It is next contended, that the affidavit for the arrest of the plaintiff in error is not a part of the record in the case, and that, in order to make it a part of the record and have it considered by this court, it must be incorporated in a bill of exceptions. It is true that it has been often decided by this court that affidavits used as evidence on the hearing of a motion before a district court must be incorporated in a bill of exceptions before they can be considered by this court. But
This action was brought by Wm. Congdon, as plaintiff, against S. J. Bryan, to recover the value of 2,122§ bushels of wheat which the plaintiff delivered to the defendant, to be deposited in defendant’s public warehouse for storage, which it is alleged the defendant unlawfully converted to his own use. The affidavit filed to obtain the order of arrest, after stating the nature of the case and alleging grounds for the arrest of the defendant in the language of the statute, contains the following:
“That said affiant is justified in the belief of the existence of the above particulars by the following facts and circumstances, threats and declarations: That ever since the 1st day of August, 1892, the defendant has been, and still is, a keeper of a public warehouse for the purpose of storing grain, at the city of Sedgwick, in Harvey county, Kansas; that during the months of August and September, 1892, the plaintiff delivered to and stored with said defendant, in the defendant’s warehouse aforesaid, 2,122-f bushels of wheat, for which said-defendant issued and delivered to said plaintiff three separate warehouse receipts, copies of which are hereto attached,, marked ‘Exhibits 1, 2, and 3;’ that since the storing of said grain as aforesaid said defendant has sold, shipped, transferred and removed said grain beyond the control of said defendant,, wrongfully and without the written assent of said plaintiff, and has not now said grain or any grain of like.quality to deliver to said plaintiff; and said defendant has wholly failed to reimburse or pay said plaintiff for said grain, so wrongfully shipped, removed, transferred and converted unlawfully and wrongfully to the defendant’s own use as aforesaid.”
The receipts are all in the same form, and differ only in dates and quantities; No. 1 is as follows:
“City Elevator, S. J. Brian, Proprietor. J. W. Quail, Manager.
Sedgwick, Kas., September 24, 1892.
“This certifies that we have received in store from Wm. Congdon seventeen hundred and ninety-seven and twenty bus. No. 2 hard wheat, subject to the order hereon of*115 Vm. Congdon, and the surrender of this receipt and payment of charges. It is hereby agreed by the holder of this receipt that the articles herein mentioned may be stored with others of the same grade and quality. Loss by fire or heating at owner’s risk. This is stored at J cent per bus. first month, and J cent per bus. second and each additional month or fraction thereof. 107,860 lbs.
J. W. Quail, Manager.”
Are these statements sufficient to show that the defendant fraudulently contracted the debt for which suit was brought? The statute requires that the affidavit contain a statement of the facts on which the plaintiff justifies his belief in the ground for arrest. The facts must be sufficient to establish the charge. (Gillett v. Thiebold, 9 Kas. 427; Tennent v. Weymouth, 25 id. 21; Hauss v. Kohlar, 25 id. 640.) The affidavit states that the defendant sold and removed the grain without the written assent of the plaintiff, and counsel for the defendant in error call our attention to ¶ 1437 of the General Statutes of 1889, which reads:
“No warehouseman, wharfinger or other person shall sell or incumber, ship, transfer, or in any manner remove beyond his immediate control any goods, wares, merchandise, grain or other produce or commodity, for which a receipt shall have been given as aforesaid, without the written assent of the person or persons holding such receipt.”
On the other hand, it is contended that this section, together with the whole of chapter 206 of the Laws of 1872, of which it was a part, was repealed by chapter 248 of the Laws of 1891. The latter act does not repeal the former by direct reference, but repeals all laws inconsistent with its provisions. It is contended on behalf of the defendant in error, that the act of 1872 is in force, at least as to warehouses having a capacity of less than 75,000 bushels, and that the act of 1891 relates only to public warehouses having a capacity of 75,000 bushels or more. Section 6 of the act of 1891 provides for receipts to be issued by the warehouseman to the owner of the grain, and requires the receipt to state “that the grain represented thereby is deliverable upon the return of the receipt,
“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 immediately delivered to the holder of such receipt, and shall not be subject to any further charges for storage after demand for such delivery shall have been made.”
Whether this case is to be determined by the act of 1872, or by that of 1891, the grain deposited in the warehouse is subject to delivery only to the person holding the receipt. Section 11 of the act of 1872 expressly makes warehouse receipts negotiable instruments, and the provisions of the act of 1891 fully recognize their negotiability. The statement of the affidavit is that the sale and removal was without the written assent of the plaintiff. There is no averment anywhere that the plaintiff was still the holder or owner of the outstanding receipts, nor is there any averment in the affidavit that the receipts had been returned or presented to the defendant and the grain represented by them demanded. Under either act, the defendant not only had a right to refuse to deliver the grain without a return of the receipts, but it. was his duty to do so.