20 A. 203 | R.I. | 1888
Alverson, a produce dealer in Providence, borrowed of the plaintiff the sum of $1,950, upon a warehouse receipt of the defendant which read as follows: — *113
PROVIDENCE WAREHOUSE Co.
No. 5175. | Received on storage of C.F. Alverson Co., subject Marks, | to the order of the Fifth National Bank, three _________________ | hundred and ninety (390) cs. eggs. To be delivered _________________ | according to the indorsement hereon, but only on the Stored in Section | surrender and cancellation of this receipt, and on B. | payment of the charges payable thereon.
S.J. FOSTER, MGR.
Across the face of the receipt was the word "Negotiable."
There were no distinguishing marks on the cases of eggs, and none noted in the margin of the receipt; but the eggs were placed by themselves in the defendant's loft. Alverson had other eggs in the warehouse, some of which may have been stored with these; but this lot was specially known to the manager and servants of the warehouse, from the fact that a portion of it got wet when the defendant was putting it into the warehouse.
November 1, 1888, the defendant delivered these eggs to Alverson, describing them by the receipt number, 5175, receiving the storage fees and giving receipt therefor afterwards. The plaintiff sues to recover the value of the eggs. The defendant contends that having kept other cases of Alverson's eggs, subject to the plaintiff's order, it had the right, in the absence of distinguishing marks, to deliver the eggs stored under this receipt, and hence is not liable for such delivery without the plaintiff's order. To support this proposition the defendant cites the following cases: Dole v. Olmstead,
These are cases where grain was deposited, according to usage, in common bulk, being necessarily indistinguishable, and the several depositors were held to be tenants in common of the common stock. Consequently, in the first case, loss by diminution or decay was to be borne pro rata; in the second, where there was a mingling with grain of the warehouseman, who was publicly selling and shipping from the common mass, an apparent ownership and *114
authority to sell was conferred upon him, so that the depositor was estopped to assert title against an innocent purchaser in the usual course of business; in the third case, where the warehouseman sold in the same manner, leaving enough to supply the depositor, the bailment continued, and the warehouseman was not liable for loss from an accidental fire, without negligence. These cases are, therefore, quite different from the case at bar, and depend upon very different considerations. Aside from the different points involved, it is obvious that grain in an elevator is practically incapable of distinction, and can hardly be stored without commingling. But it is not so with merchandise packed in cases. Jones on Pledges, § 318. The warehouseman can place them in separate lots, or he can mark them with the number of the receipt. Gardiner v. Suydam,
In the case before us, the eggs were delivered without an order from the plaintiff, with full knowledge that they were covered by the receipt which stipulated they were subject to the plaintiff's order. It is urged in justification that these eggs were out of cold storage, and other eggs were kept in cold storage to answer the receipt. To this the plaintiff replies that the eggs covered by this receipt were fall eggs, fresher than the others and of greater value. However this may have been, we think it is clear that the plaintiff, under this receipt, has the right of a bailor, and is not bound to receive other property of this description in place of its own, *115
which the bailee has intentionally delivered to another. The transferee has the right to suppose that the described property is held subject to his order. How is he to know that the warehouseman has mingled it with other like property, so as to be indistinguishable from it, if such were the case? Surely the warehouseman is bound to some degree of care and responsibility to enable him to deliver what he receives. If it is enough that he deliver anything answering the same general description, a warehouse receipt is indeed a precarious security. The delivery to Alverson, who deposited the eggs, is no defence, since by its contract the defendant assumed the obligation to deliver only upon the order of the plaintiff, knowing, from the course of business, that the plaintiff had advanced money upon the receipt. The case therefore differs, in this respect, from Parker v.Lombard,
Stewart, Gwynne Co. v. Insurance Co. 9 Lea, Tenn. 104, is almost identical with the case at bar. There receipts were given for forty bales of cotton, "marks various," deliverable only upon the indorsement of the secretary of the Phoenix Insurance Company. Upon the failure of Vaughn, the depositor, the warehouseman notified the secretary that creditors of Vaughn were replevying the cotton then in store, and requested him to take forty bales to secure the company, or to defend the replevin suit. The secretary inquired if he had the same cotton that was on hand when the receipt was given; and upon being informed by the warehouseman that he had not, the secretary declined to have anything to do with the matter. At the maturity of the note, for which the receipt was security, the company demanded the cotton or its value and then brought suit. The court held that the receipt was a contract, vesting the right to the particular forty bales in the company. Parol testimony was offered to show that the receipt was not to cover any particular forty bales, but that the warehouseman was to keep on hand as much as forty bales, of the same value, belonging to Vaughn, subject to the receipt. This evidence was rejected, upon the ground that its effect would be to show an independent collateral agreement, contradictory of the written contract, since both contracts could not stand. The company therefore recovered *117
the value of the cotton. So in Hale et al. v. Milwaukee DockCo. 29 Wisc. 482, it was held that a warehouse receipt was a contract, binding the receiptor to safely store and deliver the same goods to the holder of the receipt, except in those cases where there is some express agreement or known usage of trade which shows that the parties otherwise intended. Dixon, C.J., says: "The meaning of the receipt clearly is, that the same fifty-four barrels received in store, and described as mess pork, are deliverable or to be delivered to the bearer of the receipt, on return of the same and payment of storage; and the warehouseman, not less than the ship-owner or carrier, is bound to deliver the identical goods received, in fulfillment of the contract." Consequently the warehouseman, having delivered the same barrels which he received, was held not to be liable, although they did not in fact contain mess pork, but only salt; as he acted in good faith and was ignorant of the contents of the barrels. In Goodwin v. Scannell,
We think the plaintiff's claim in this case, to hold the defendant responsible for the same goods covered by the receipt, is sustained both by principle and authority. The contract is a plain one, which must be answered according to its terms.
A question is made upon the measure of damages. The action isassumpsit, setting out that the defendant agreed to keep, and deliver on the order of the plaintiff, three hundred and ninety cases of eggs; yet, unmindful of said promise, the defendant delivered the same to a person unauthorized by the plaintiff, whereby the plaintiff lost said eggs, and the defendant became liable to pay for the same on request. This suit is upon contract, and properly so. *118
although the gist of the action is the wrongful delivery. Judge Cooley, Cooley on Torts, *91, lays down the rule that where a tort is a breach of duty arising out of a contract, the action may be in tort or for the breach of the contract. Taking the case of a common carrier as an illustration, he says: "Thus for breach of the general duty imposed by law, because of the relation one form of action may be brought, and for the breach of contract another form of action may be brought. Other bailees of property occupy a similar position; they assume certain duties in respect to the property by receiving it." As to the damages, the defendant contends that the plaintiff should have made demand for the eggs, and, having made none before suit, the measure of damages is the value of the eggs at the date of the writ, viz., March 11, 1889, at which time the eggs, if kept, would have spoiled. In actions of tort the rule is, that the plaintiff is entitled to the value of the property at the time of the conversion. It amounts to conversion when one disposes of property of another without authority, or puts it out of his power to return it, or deals with it in a manner subversive to the dominion of the owner. Donahue v. Shippee,
The rule of damages should be substantially the same in either form of action. But in this case the plaintiff had only a special property in the eggs as pledgee, and, delivery having been made to the pledgor, the measure of damages is the amount of the plaintiff's loan with interest, it appearing in evidence that the value of the property at the time of the conversion exceeds that amount.