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Love v. People's Compress Co.

102 So. 275 | Miss. | 1924

Smith, C. J.,

delivered the opinion of the court.

The appellant is in charge of the liquidation of the Farmers’ Bank of Boyle, Miss., and brought this suit in *628the court below to recover from the People’s Compress Company, a corporation doing a warehouse business, the value of six bales of cotton stored with the Compress Company, for which it issued negotiable receipts, of which the bank became the holder for value without notice on December 4, 1920, which are now held by the appellant.

The appellee filed a special plea in bar by which it set up that the cotton was seized and taken from its possession by virtue of a writ of attachment issued in a proceeding begun on May 4, 1921, wherein the plaintiff claimed, and the court held, that the cotton was grown by one Cowgill on land leased to him by the plaintiff, and who was indebted to the plaintiff in the sum of six hundred dollars for the payment of which the plaintiff had, under the statute, a landlord’s lien on the cotton. The plea does not allege that the appellant or the Farmers’ Bank was a party to the proceeding in which the cotton was seized, or that either of them had notice thereof. A demurrer to this plea was overruled, the appellant declined to plead further, and judgment final was rendered against him.

On a former day we reversed the judgment of the court below for a reason which the appellee very earnestly suggests was erroneous, and since the record presents another question, the answer to which will require a reversal of the judgment and therefore the overruling of this suggestion of error, we will withdraw the former opinion, and decide that question, which" is, Can the appellee excuse its failure to deliver the cotton to the appellant by showing that it was taken from it by judicial process?

When the appellant became the holder of the receipts for the cotton it acquired such title to the cotton as the person negotiating the receipts to it had the ability to convey, and it became the appellee’s duty to hold possession of the cotton for him “as fully as if” it “had con*629tracted directly with him.” Section 41, chapter 218, Laws 1920 (Hemingway’s Supplement of 1921, section 7957ol). At common law a “bailee is excused from returning the subject-matter of the bailment where the goods are taken from him by authority of law exercised through regular and valid proceedings,” of which the bailor had notice or of which the bailee had made a reasonable effort to notify him. 6 C. J. 1141, 40 Cyc. 443; 3 R. C. L. 89; Mortimore v. Ragsdale, 62 Miss. 86. Since the plea does not aver that the appellant had notice of the proceeding in which the cotton wa.s seized, or that the appellee made any effort to notify him thereof, it would seem that it presents no defense even at common law.

But be that as it may, the case is controlled by the Uniform Warehouse Receipts Act, which appears as chapter 218, Laws 1920 (chapter 186A, Hemingway’s Supplement of 1921, under sections 10, 11, and 25 of which Hemingway’s Code Supplement of 1921, sections 7957j, 7957k, and 7957y), the appellee became liable to the appellant for a conversion of the cotton when it surrendered the possession thereof to the officer who served the writ of attachment without taking up and canceling- the receipts issued therefor.

Under section 25 goods for which a negotiable receipt has been issued ‘ ‘ cannot thereafter, while in the possession of the warehouseman, be attached by garnishment or otherwise, or be levied upon under an execution, unless the receipt be first surrendered to the warehouseman, or its negotiation enjoined.” The writ of attachment therefore conferred no authority of the officer serving it to seize the cotton until the receipts therefor issued by the appellee had been surrendered or their negotiation enjoined; consequently the seizure of the cotton by him was a mere trespass to which the appellee should not have acceded. If the seizure was made over the appellee’s protest, it should have interposed a claim *630for the cotton in the proceeding in which the attachment writ was issued, which claim under the statute must have been allowed by the court.

This is the clear meaning’ of the statute, and is also the interpretation placed thereon by the • supreme court of Illinois in Manufacturers’ Mercantile Co. v. Monarch Refrigerating Co., 266 Ill. 584, 107 N. E. 885, several years prior to its enactment by the Mississippi Legislature.

We are not here concerned with what the rights of the appellee in this connection would be had it notified the bank of the seizure of the cotton .under the attachment in time for it to have interposed a claim thereto, or if the appellant had itself interposed such a claim, which the court erroneously disallowed; no such question being presented by the plea.

Stress is laid by counsel for the appellee on the fact that the plea alleges that the cotton was seized in a legal proceeding’ wherein the plaintiff claimed, and the court decided, that he had a landlord’s lien on the cotton, to which character of lien the title of the holder of a negotiable warehouse receipt was held to be subordinate in Campbell v. Farmers’ Bank, 127 Miss. 668, 90 So. 436, but that the court so decided in the proceeding in which the cotton was seized cannot" avail the appellee here, for the existence of a landlord’s lien on the cotton and the rights of the appellee that grow thereout must be established in a proceeding to which the appellant is a party before he can be affected thereby.

The suggestion of error will be overruled, but the opinion hereinbefore rendered will be withdrawn.

Overruled.