108 N.Y.S. 1 | N.Y. App. Div. | 1908
Lead Opinion
In May, 1904, the plaintiff stored in the defendant’s warehouse certain household goods ahd received therefor a warehouse receipt which was marked “not negotiable.” In October following she applied to one Maxwell, who was the proprietor of the Standard Storage Warehouse, for a loan upon such goods, and on the tenth of that month he-loaned her$200 for one week-—she delivering to him as collateral security for the payment thereof the warehouse receipt- and also a recéipt to the effect that she had received $220 as a loan on the goods. The plaintiff did not"repay the loan at the time agreed and sometime between the eighteenth and twenty-first of October Maxwell removed the goods to his own warehouse-presenting to.the defendant its warehouse receipt and also the receipt signed by the plaintiff, which, in the form presented, stated that the plaintiff had received $220 as a loan upon the goods stored in the defendant’s warehouse “ and hereby made subject to the order of Charles M. Maxwell.” On the twenty-seventh of October the plaintiff went to the defendant’s warehouse to arrange for the removal of the goods and was then informed that upon her order they had been delivered to Maxwell. She denied that she had given such order. In April, 1905, the goods, or substantially all of them, were sold at public, auction for $596, and at the trial the auctioneer testified that this was-their fair and reasonable value. In February, 1906, this action was brought to recover the value of the goods upon, the ground that the defendant, by delivering them to Maxwell, was liable for a conversion. The jury rendered a verdict in: her favor, for-the sum of $3,500, and from the 'judgment
The warehouse receipt given by the defendant to the plaintiff was in form non-negotiable. One of its conditions was — “ present this warehouse receipt and a written order when any goods are to be withdrawn. Goods will be delivered-only upon receipt of a written order signed by the person in whose name they are stored.” The plaintiff testified that when she applied to Maxwell for the loan he demanded that the goods be stored in his warehouse and that she declined to consent to such removal; that when she signed the • receipt for the loan which he had written out, the words “.and ' hereby made subject to the order of Charles M: .Maxwell” were not incorporated therein ; and that thereafter she refused, on different occasions, to give him a written order for the removal of the goods to his .warehouse. A handwriting expert testified that the words above quoted were -written some time after the body of the receipt was written, though he, of course, .was. unable to state . whether such words were written- before .or after the .receipt was signed. Maxwell testified that he wrote the whole of the receipt,, except the signature, at the same time, but he subsequently admitted that, the disputed words were written somewhat later ;than the other words were; but both he and the witness Ryan, who -was present at. the time, testified that the disputed words were written in the receipt before the plaintiff affixed her signature. •
If it be assumed that the disputed words were written, in the. receipt after the plaintiff had signed and delivered it to Maxwell, then it must also be assuméd that she left a blank space between her signature and the body of the receipt, which was in Maxwell’s handwriting, sufficient to enable -him to incorporate such words therein. She delivered to him the warehouse receipt, according to her own testimony, as collateral security for' the payment of the loan, and he then asked her for an order, directing, the removal to his warehouse. By leaving this space in the body of the receipt, he was enabled to incorporate the disputed words and present to the defendant not only its warehouse receipt, btit also what purported to be a written Order for. the delivery of the goods. • When this receipt was presented there was no way in which the defendant, in the ordinary course of business, could have determined that the; dis-
But aside from this the plaintiff was not entitled to recover. A fair construction of all the.evidence is to the effect that the goods were "pledged by her to Maxwell as security for the loan made by him. The fact is not disputed that he loaned to her $200 for which she signed a receipt stating that the loan was made upon the goods in question and she at the same time delivered to him her warej house receipt. To constitute a valid pledge of personal property there must be a delivery of the thing pledged to the pledgee, but what will amount to a delivery depends upon the circumstances of each particular case. (Clark v. Costello, 79 Hun, 588.) The delivery of a bill of lading, though without indorsement, has been held a delivery of the property described therein. (City Bank v. R., W. & O. R. R. Co., 44 N. Y. 136; Merchants’ Bank v. U. R. R. & T. Co., 69 id. 373.)
What the court said in disposing of the case last cited, with reference to an intent to pass title, is especially applicable here. “ It cannot be doubted that the very purpose in view was to pass the title as no other way was provided for the payment of plaintiff’s advances. * * * At most the intent here was a question of fact, a * *” Therefore, if it be conceded that the disputed words were not in the receipt when it was signed and delivered, and that the warehouse receipt issued by the plaintiff was non-negotiable, it nevertheless could not be held as a matter of law that in view of all the circumstances there was not a sufficient delivery of the goods to constitute a pledge and give to Maxwell the right of possession, at least when the loan was not repaid. It, therefore, seems to me the court erred in refusing to charge the jury as requested that
'Hére'th'e pláintiff, By the''delivery óf’tlié warehouse receipt'and the OthCr receipt’which She'gávej'had ’tilbthed Maxwell with ht least the indicia of title, 'arid'it'wds.'a 'question' fdr 4he jiiry,.iri‘ view of that fact", tákén in connection with'thó'othér testimony 'héarihg On the Subject, to' Say 'whether'® she- had -’not relitíquished her interest therein until such loan had been paid, to the éxté'nt"áfleast of enabling Maxwelltih her default tb'také'pdsséssibh Of'filié prdpefty. (Driggs v. Dean, 167 N. Y. 121.)
'"■Thé'judgmBtít múst'also'Be'fevér'se'd'becáit’se filie ‘plaiiítiff 'fail‘éJd to establish'by .S'átíáfáéto'iyevidence’the ‘ valiie 6f'the ’'goods.*" Thé auctioneer who'sbld.them'festitied'that'fliey'broiight at public alibtibn"$5§6, which WaS'their'fáir'anil réasobUBlb'"Value. The plaintiff testified‘t’liáf they' originally "cost 'inilch 'ihpre," dn'd 'that' "they' had h'ébn in úáe fin'd boar ding hbiisé'fbr sévdrdTybáfs, b'úfh'er'fiéihimdhy' as tó valúe is'vágué, indefinite ‘aÜÜ •unádtÍBfeCtdfy''‘án,d'ltb‘‘suC'h ’áíi extent that'a véf'diCt'ftir'SSyS'ÓO^fé'diCdtbd fiMerbbrijfih Viéw'o.ffivhat the'-property sold’for 'at-’public .áiictidñ, cáhnbf'Bé :p'értiiitté'd 'tó stand. "'In'ThiS 'cbnnéctióh ifm'áy'hofbe diit óf place tóÉ’‘call"attention to’ ah error‘which wfi'S' cbihmíttéd'at thé'firidl, which'irécesEt'aíbs
Upon each of the grounds named, therefore, I am of the opinion this judgment should be reversed and a new'trial ordered.
The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.
Ingraham and Clarke, JJ., concurred; Houghton, J.,. concurred on last ground only.
Concurrence Opinion
I concur in the reversal of this judgment because of the want of satisfactory proof as to the value of the goods, and also because the court erred in refusing to charge the jury as requested by the appellant that if they believed it was the intention of the plaintiff to pledge the goods at'the time she borrowed the money from the defendant, she was not entitled to recover. I think, under the evidence in' the case and its peculiar circumstances, the defendant was entitled to this instruction.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
