239 P. 422 | Cal. Ct. App. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *89 This is an action in conversion. Plaintiff, a married man, deposited certain personal effects, the community property of himself and his wife, with defendant, a warehouse keeper, and they were stored by defendant in plaintiff's name. Defendant thereafter delivered the articles to the wife and the present action was the result of the delivery, suit having been instituted after due demand by plaintiff for a return of the goods. Plaintiff had judgment and defendant appeals.
[1] One of the questions of fact at the trial was whether the delivery of the property to the wife was made upon the written order of respondent, presented to appellant by the wife. The trial court found that the wife presented no such order to appellant and that respondent issued no such order. It is contended that the finding was not supported by the evidence. The wife testified that the alleged order was given her by respondent, that she exhibited it to appellant before the personal property was delivered to her, but did not leave it with appellant, and that she thereafter destroyed it. Other witnesses testified that they had seen the alleged order. On the other hand, respondent testified that he never issued or made such a document. Under these *90 circumstances the finding must stand. The record shows but a conflict of evidence and the determination of the trial court upon the subject is therefore final.
The court also found that appellant delivered the articles to the wife "without authority and contrary to the terms and conditions of its storage receipt" which was issued to respondent when he made deposit of the goods. It is insisted that this finding was not sustained by the evidence and in support of the contention the argument is advanced that, the deposited articles having been community property, a delivery to the wife was a delivery to the husband, or, at least, that the wife, because of her community interest, was as much entitled to the possession of the property as was the husband, although the delivery for storage with the depositary was made by him and not by her. This point is also made against a finding of the trial court that appellant converted the goods to its own use by making delivery of them to the wife.
[2] The business of appellant as a warehouse keeper is regulated by the provisions of an act of the legislature passed in 1909 (Stats. 1909, p. 437; Deering Gen. Laws 1923, Act 9059). Section 8 of the act provides, in part, the portions omitted not being pertinent to the present inquiry: "A warehouseman, in the absence of some lawful excuse provided by this act, is bound to deliver the goods upon a demand made either by the holder of a receipt for the goods or by the depositor . . . In case the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor, . . . the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal." Section 9 reads: "A warehouseman is justified in delivering the goods subject to the provisions of the three following sections, to one who is — (a) The person lawfully entitled to the possession of the goods, or his agent, (b) A person who is either himself entitled to delivery by the terms of a non-negotiable receipt issued for the goods, or who has written authority from the person so entitled either indorsed upon the receipt or written upon another paper, or (c) A person in possession of a negotiable receipt by the terms of which the goods are deliverable to him or order or to bearer, or which has been indorsed to him or in blank by the person to whom delivery was *91 promised by the terms of the receipt or by his mediate or immediate indorsee." Section 10 of the act follows: "Where a warehouseman delivers the goods to one who is not in fact lawfully entitled to the possession of them, the warehouseman shall be liable as for conversion to all having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by subdivisions (b) and (c) of the preceding section and though he delivered the goods as authorized by said subdivision[s] he shall be so liable, if prior to such delivery he had either (a) Been requested, by or on behalf of the person lawfully entitled to a right of property or possession in the goods, not to make such delivery, or (b) Had information that the delivery about to be made was to one not lawfully entitled to the possession of the goods." Sections 11 and 12 are also referred to in section 9, but nothing in either of them is material to the present controversy.
At the time of the deposit of the personal property with appellant by respondent, the former issued to the latter its non-negotiable warehouse receipt, in accordance with provisions of the Warehouse Act to which we have not found it necessary to refer. The receipt contained the following language: "Received for the account of Fred McMullen, the goods enumerated in the schedule annexed . . . Goods will be delivered upon receipt of a written order signed by the person in whose name they are stored. . . ." Appellant also issued to respondent, at the time the goods were deposited, a document, a part of which, under the heading, "Important," read: "Many of our customers are not familiar with warehouse rules that are required by the laws of this State and which are for the protection of the customer who stores his goods, as well as for the warehouseman. Goods can only be delivered on the order of the party in whose name they are stored. This rule applies to husband, or wife, as well as others. . . . Should you desire to allow any other than yourself to have access to, or to remove, any or all of your goods, please fill in, sign and mail us the attached blank order and have the party so authorized sign his or her name for identification." The blank order mentioned was part of the document.
Under the provisions of the Warehouse Act, and upon the language of the documents issued by appellant to respondent *92
pursuant to its terms, we cannot perceive how appellant can justify a delivery of the stored goods to the wife of respondent. It is at once obvious that the delivery was not proper under the provisions of either subdivision (b) or subdivision (c) of section 9 of the act, as the wife was not within the terms of either. How can she have been within the language of subdivision (a)? Was she "lawfully entitled to the possession of the goods" merely because they were community property? Under the provisions of subdivision (a) the warehouse keeper doubtless could have delivered the property to anyone who was entitled to their exclusive possession as against respondent, with impunity. That seems apparent from the very language of the law. But such a right on the part of appellant is very different from a right to deliver possession to an individual who enjoyed an equal right of possession with respondent — assuming that the wife had that right. Here we might possibly rest the matter, for the wife could claim no more than that she was in law entitled to the possession of the goods equally with her husband. The point now suggested, however, need not be decided, for she could not justify even a claim as great as that referred to [3] "The husband has the management and control of the community personal property, with like absolute power of disposition, other than testamentary, as he has of his separate estate; provided, however, that he cannot make a gift of such community personal property, or dispose of the same without a valuable consideration, or sell, convey, or encumber the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the wife or minor children that is community, without the written consent of the wife" (Civ. Code, sec. 172). It would not seem that the act of respondent in depositing for storage the property here in question came within that part of this section following the word "provided." By that act he did not make a gift of the property or dispose of it without consideration. Surely, the question of consideration, within the meaning of the statute, was not involved in his storing the goods with appellant for safekeeping, and we therefore need not pause to determine whether his deposit for storage amounted to a disposal of them. The property consisted of furniture and fittings for the home, it is true, but in storing it respondent plainly did not "sell, convey or encumber it" *93
as the provision forbidding such acts without the written consent of the wife is intended by the statute. The inhibition of section 172 thus being put out of consideration, respondent dealt with the goods in storing them as if they were his separate estate, as allowed under the first part of the enactment. Not only does this seem plain upon the face of the section, but the supreme court has lately so declared, in effect (Roberts v. Wehmeyer,
The findings of the trial court show that respondent made written application to appellant for the storage of the goods which were placed in appellant's care; that the warehouse receipt issued when the goods were received by appellant recited that the responsibility of appellant under the storage arrangement should be limited to the sum of twenty-five dollars for each piece or parcel stored, or its contents, unless the value thereof was made known at the time of storage, when a higher rate for the service would be charged than was really exacted; that the value of certain packages which were stored was not made known to appellant at the time and that appellant never had notice of the value thereof; *94 and that appellant charged respondent a lesser rate of storage than it would have charged if a higher value than twenty-five dollars per package had been declared by respondent at the time the goods were stored. Not only did the warehouse receipt contain the recital above stated, limiting the liability of appellant, but the written application for storage made by respondent contained language practically identical in form, and in effect asked for a low rate of storage because of the low valuation placed on the packages. The trial court found, however, in its conclusions of law, that respondent was entitled to judgment for the full value of the articles included in the packages in question, and rendered judgment accordingly. It is now contended that the judgment was in this respect excessive. That is, it is insisted that the judgment, in so far as it was based upon the value of the packages mentioned, should have been limited to the sum of twenty-five dollars for each package, whereas the trial court found the actual value of each to be more than that sum and accordingly gave judgment for more. Respondent contends that appellant had no right to limit its liability in the respect mentioned, and that, therefore, the judgment was correct.
We first state the line of argument advanced by respondent, in effect, upon the interesting question thus presented. Section 2 of the Warehouse Act specifies what must be the contents of a warehouse receipt. Section 3 provides, in part: "A warehouseman may insert in a receipt, issued by him, any other terms and conditions, provided that such terms and conditions shall not — . . . in anywise impair his obligation to exercise that degree of care in the safekeeping of the goods intrusted to him which a reasonably careful man would exercise in regard to similar goods of his own." This language imports that a warehouseman may not by his warehouse receipt attempt to limit his liability for a failure to exercise at least ordinary care. [5] Therefore, did the delivery of the goods in question here to the wife of respondent show a failure upon the part of the warehouseman to exercise that degree of care in their safekeeping? In other words, did the breach of the bailee's agreement to deliver only to respondent, or upon his order, amount to negligence? There seems, argues respondent, in effect, to be but one answer to these questions. The exact point was before the court in *95 Rex v. James, 62 Tex. Civ. App. 238 [
The argument of appellant upon the question is now in effect to be stated. Section
Leaving now the argument of appellant, we do not pause to consider whether all of the three cases last cited are in point, as the language of the opinion in Donlon Bros. v. SouthernPacific Co. is so explicit as to have nothing to be desired in furtherance of an endeavor to ascertain the rule in this state upon the subject treated so exhaustively in that case. A vigorous dissent from the conclusion reached in the opinion, upon views similar to those expressed in Healy v. New York Cent. R. Co.,supra, was filed by one of the members of the court, but the principle announced has ever since remained the law of the state. The case was cited with approval in Mering v. Southern PacificCo., supra, and was followed in Reeder v. Wells Fargo Co.,
Other points are made by appellant, but they are either concluded by our views upon questions which we have above determined, or they fall of their own weight.
The judgment is modified by striking therefrom the figures $759.97, and inserting therein in lieu thereof the figures $375.85. As so modified the judgment is affirmed.
Finlayson, P.J., and Craig, J., concurred. *101