Longino v. Delta Bank

76 Miss. 395 | Miss. | 1898

Terral, J.,

delivered the opinion of the court.

On January 26, 1897, before E. L. Miller, mayor of Greenwood, Longino, guardian, recovered a judgment against G. E. Dugan, for Sj¡>171.60 and costs .of suit, and on the same day it was enrolled in the circuit clerk’s office; on February 23, 1897, said Miller issued an execution on said judgment, which was levied on seven bales of cotton at the compress at the Greenwood Compress & Storage Company, of Greenwood, Miss. The Delta Bank made claim to the cotton in the manner prescribed by the statute. The issue was tried before the mayor, and from the judgment rendered by him the case was taken to the circuit court, where a second trial was had. On the latter trial it appeared from the evidence that G. E. Dugan, the defendant in execution, was a cotton buyer in Greenwood, where he did business under the sign of G. E.. Dugan & Co.; that these seven bales of cotton levied on at the warehouse of the’ Compress & Storage Company, were, at his place of business, contracted to .be bought from the- owners thereof in this way: Dugan and the owner agreed upon the price of the cotton, when the seller would take the cotton to the compress company’s warehouse, store the same there, and obtain a receipt of the following tenor: “Greenwood, Miss., February 5, 1897. Greenwood Compress & Storage Company have received from G. E. Dugan & Co. one bale of cotton, marked as per margin hereof, which they agree to deliver upon the return of this receipt and payment of all charges. Possession of this receipt evidences title to property. Acts of providence, fire, and old damage excepted. S. E. Keesler, superintendent Greenwood Compress & Storage Company.” The owner would take the warehouse receipt, return with it to Dugan, when Dugan would attach to the receipt an order on the Delta Bank for the purchase price of the cotton, hand the receipt and order to the owner, who would deliver them to the bank, which would pay the order for the price, and hold the warehouse receipt for the cotton, and in this way all the cotton levied on was acquired.

A peremptory instruction for the plaintiff was refused. The court instructed the jury for the bank, “that if they believed that the warehouse receipts were issued by the ware-housemen to the sellers and by the sellers delivered to the bank upon the payment of the checks of G. E. Dugan & Co. for the purchase money of the cotton, and that neither the receipts nor the cotton had ever been in the possession of Dugan & Co., but were held by the bank to secure the payment of the purchase money advanced by the bank to buy the cotton in controversy, and that said purchase money had not been paid to the bank, then they should find for the claimant.” The jury having found for the claimant, the plaintiff in execution appeals. The plaintiff insists that the cotton is liable to his execution by virtue of the statute of frauds, § 4234 annotated code.

The bank claims that Dugan, the defendant in execution, never “used or acquired ” the seven bales of cotton or any of them in his business of G. E. Dugan & Co. It is quite clear that Dugan never got possession of the cotton nor the warehouse receipts. The compress company, which received the actual possession of the cotton from the owners of it, and issued to them receipts in the name of G. E. Dugan & Co., expressly stipulated “to deliver the cotton upon the return of the receipts ;” possession of the receipt was to evidence the title to the property. By executing the paper the Compress & Storage Company consented in advance to become the bailee of anyone to whom it might be transferred. Obviously the compress company held the cotton as the bailee of the owner until the receipt came to the bank, and thereafter it was the bailee of the bank. The cotton was at no time in the possession, actual or constructive, of Dugan; it was in the actual possession of the owner until delivered by him to the Compress & Storage Company, and thereafter in its possession; the receipt gave the constructive possession to the owner until delivered by the owner to the bank, and thenceforward it was in the bank. The possession of the cotton or of the receipt was at no time in the possession of Dugan. It (the cotton) was not acquired or used by him in his business. Section 4234 did not apply to the case. Durr v. Hervey, 44 Ark., 301, s.c. 51 Am. R., 597; Benj. on Sales, sec. 174; 28 Am & Eng. Enc. L., 675.

The bank was entitled to judgment.

Affirmed.