159 Minn. 395 | Minn. | 1924
Appellant is the assignee of a large number of storage receipts issued for grain stored in a public elevator operated by the New Leipzig Equity Exchange in the village of New- Leipzig, North Dakota. Respondent is a Minneapolis dealer in grain, buying and selling it for others on commission.
On July 23, 1920, respondent entered into a contract with the exchange, whereby the former agreed to advance money and give credit to the latter to an amount not exceeding $25,000. In consideration thereof it was agreed that 80 per cent of the grain purchased by the exchange should be consigned to respondent for sale on commission.
The receipts in question were issued between August 30, 1920, and March 14, 1921, and represent grain of the alleged value of $11,-445.15. Between September 18, 1920, and April 25, 1921, the exchange shipped 52 cars of grain to respondent. It sold the grain and credited the exchange with the net proceeds. There is a balance of $11,729.53 still due to respondent for advances made to the exchange. The exchange is insolvent. In an endeavor to collect pay for the grain, appellant brought this action, alleging a conversion by respondent.
The provision of the North Dakota statute upon which appellant relies reads thus:
“No such warehouseman shall insert in any warehouse receipt issued by him any language in anywise limiting or modifying his liability as imposed by the laws of this state.” Comp. Laws N. D. 1913, § 3112.
This court has held that the receipt prescribed by our statute cannot be modified or changed by a subsequent verbal agreement, Thompson v. Thompson, 78 Minn. 379, 81 N. W. 204, 543, but not that the holder cannot authorize the warehouseman to ship and sell the grain without surrendering the receipt. On the contrary it has been held that, notwithstanding the terms of the receipt, the holder may consent to the sale of the grain and, when he does, the sale is rightful and gives title to the purchaser. Hall v. Pillsbury, 43
No statute of North Dakota expressly forbidding the shipment or sale of stored grain has been called to our attention. Section 3113, Comip. Laws, provides that the holder of a storage receipt may require delivery at a terminal point of grain equal in quantity and quality to that covered by the receipt, and, unless it was placed in a special bin, delivery of the identical grain described in the receipt cannot be required. Our statute is different, and leaves no room for an inference that the shipment of grain in storage is permissible. It requires express authority from the owner and the return of the storage receipt. Section 4438, GL S. 1913. But, in spite of the requirement, it was said in the cases cited that the consent of the owner-to the sale of his grain makes the sale rightful. The same conclusion is inevitable when we consider the less drastic provisions of the North Dakota statute.
Consent is not to be inferred from the fact that the owner is familiar with the custom prevailing among warehousemen of shipping and selling grain held in storage. Something more must be shown, and whether the showing is sufficient to establish consent necessarily depends on the facts in the particular case. Consent to as sale does not change the relations of the parties. Until the grain is sold, the warehouseman remains a bailee. When sold with authority, the purchaser gets good title and the bailor’s right to follow the grain is gone. There is no reason why a bailor may not make the bailee his agent to sell. If he does and a sale is made, the legal rights of all concerned are determined by the law of agency. 6 C. J. p. 1091.
The trial court found that appellant was estopped from denying the authority of the exchange to sell the grain. That conclusion necessarily rests on the nature and quantum of proof of consent.
Estoppel is one of the subjects discussed in Kastner v. Andrews, but on that point- the decision is not binding upon us, being entitled only to the consideration due to a well-considered opinion of the court of last resort of a sister state.
The proof of consent to the sale of the grain at Minneapolis is less convincing. Some of appellant’s assignors knew that the grain would be sold and did not object. Some knew how the exchange conducted its business. Several were interested in it as stockholders.
The last car of grain was shipped to respondent on April 25, 1921. When the elevator was closed in June, the storage receipts were in the possession of the manager. The holders had given them to him, and when he left he gave them to the secretary of the exchange. The receipts had been surrendered by the holders in exchange for checks drawn on local banks by the exchange. For lack of funds most of the checks were returned unpaid. Thus it appears that after all their grain had been shipped to Minneapolis and sold, instead of attempting to follow or claim it, appellant’s assignors elected to look to the exchange for payment. They must have known that it was then on the verge of insolvency. If they had not consented to the sale of their grain, it is difficult to understand why they took the checks and gave up their receipts. Their conduct is persuasive evidence of knowledge of and acquiescence in what had been done by the exchange.
There is another important circumstance to be considered. Respondent received and sold the grain as the agent of the exchange and its liability is no greater. It has been held that, if a warehouseman has a right to ship stored grain to a terminal market and sell
The order denying a new trial is affirmed.