Plaintiff recovered judgment in the court below, and •defendant the Northern Trust Company alone appealed from the judgment. The facts, briefly stated, are as follows: The Hart-Parr Company, for whose use this action is prosecuted, is a foreign •corporation engaged in the business of manufacturing engines at 'Charles City, Iowa, and in selling the same throughout the coun■try. The defendant Robb-Lawrence Company was organized as a corporation under the laws of this state, and duly authorized to do 'business as a public warehouseman under the provisions of chapter 141, page 180, Laws 1901, being sections 2262-2272, Revised Codes 1905; the appellant being a surety upon the bond of the Robb-Lawrence Company, as such warehouseman, given pursuant
Appellant’s first contention is that a warehouseman cannot make a valid ¡pledge of his own property by the issuance of a warehouse receipt, and hence that the holder of such receipt acquires no lien upon the property. Our attention is directed to section 6195, Rev. Codes 1905, which provides: “The lien of a pledge is dependent on possession and no pledge is valid until the property pledged is delivered to the pledgee .or to a pledge holder as hereinafter prescribed.” Also to section 2248, Revised Codes 1905, which prohibits the owners of grain elevators and warehouses from issuing warehouse receipts for grain not actually delivered into such warehouse. The latter section has no application to • the case at bar, as it refers merely to the issuance of warehouse receipts for grain delivered in the elevator or warehouse. This section was enacted as a part of chapter 126, page 321, Laws 1891, which deals solely with grain warehouses. For the statute law applicable to this case, we must look to chapter 141, page 180, Laws 1901, being sections 2262-2272, Revised Codes 1905, which relates generally to warehouses for the storage of goods, wares and merchandise; grain in bulk being expressly excepted from the provisions of the act. It is a noticeable fact that this statute contains no provision corresponding with section 2248, Revised Codes 1905, above referred to. This distinction in the two statutes is an important one. See opinion of Brown, J., in Re St. P. & K. C. Grain Co., 89 Minn. 98, 94 N. W. 218, 99 Am. St. Rep. 549. We are therefore squarely confronted with the proposition whether under the provisions of chapter 141, page 180, Laws 1901, a warehouseman can by the issuance and delivery of a warehouse receipt for property owned by him and .contained in his warehouse create a valid pledge of such property to his creditor as security for his indebtedness, and thereby, without an actual change of possession of the property, become a lawful
We fail to find anything in our statute requiring us to depart from this almost universal doctrine. Certain cases are cited by appellant’s counsel apparently holding to the contrary; but, upon examination, they will be found to have been decided upon local statutes changing the common-law rule or to rest upon facts not parallel to those in the case at bar. Section 2266, Revised Codes 1905, is in harmony with the general rule above stated. It provides: “The title of goods and chattels stored with a public storage company or in a public warehouse shall pass to a purchaser or pledgee, by the indorsement and delivery to him of the storage company’s or warehouseman’s negotiable receipt therefor, signed by the party to whom such receipt was originally given, or by an indorsee of such receipt, subject to all liens and charges thereon for warehousing, advanced charges and insurance.” Our conclusion upon this point is, in brief, that the pledge of this property by the RobbLawrence Company to the plaintiff was valid, and that by the issuance of such warehouse receipt to plaintiff, and the retention of the property in such warehouse, the relation of the Robb-Lawrence Company to said property thereafter was that of a public warehouseman under the law, and hence that appellant, the Northern Trust Company, as such surety became liable under the bond 'for its safekeeping.
Appellant’s second contention is that plaintiff, being a foreign corporation, and not having complied with our statute (sections 4695, 4697, Revised Codes 1905,)' prescribing the conditions upon which such corporations may do business in this state, cannot maintain this action, and that such contract is void under section 4699, Revised Codes 1905. In answer to this contention it is sufficient to say that the facts in the case at bar, as we understand them, are
It is next contended by appellant that the conversion of the property by the warehouseman was subsequently waived by plaintiff by receiving and retaining a portion of the proceeds of certain of said pledged goods, knowing that the same had been wrongfully sold and converted by the warehouseman. Conceding this to be true does not aid appellant, for the obvious reason .that such waiver of the conversion of a portion of the property merely went to a diminution of plaintiff’s recovery, and hence was not a ground for the direction of a verdict or for judgment non obstante. Kerr v. Anderson, 16 N. D. 36, 111 N. W. 614. It was not ground for a new trial, as no proper specification thereof was contained in the notice of intention to move for a new trial. .'It was not prejudicial, as the trial court in charging the jury told them, in effect, that in determining the plaintiff’s damages, in the event they found for plaintiff, to omit the value of any property converted, the proceeds of which were paid to and knowingly received by plaintiff. It also appears that at about the time such proceeds were turned over to plaintiff the Robb-Lawrence Company took a receipt therefor from plaintiff’s attorneys, which receipt expressly set forth an agreement that such payment should not operate as a ratification of such sale, or as a relinquishment of any of plaintiff’s rights under the warehouse receipt aforesaid. For these reasons, we must overrule appellant’s contention on this point.
Tire fourth contention relates to the ruling of the district court in refusing to permit the witness Lawrence to answer the following question: “At the time of the execution of the warehouse receipt was there any amount stated that should be secured by such warehouse receipt?’’ This ruling was clearly erroneous, as respondent’s counsel, in effect, concede; but it does not appear that the same was in any manner prejudicial. . No offer of proof was made, and the undisputed testimony is that the warehouse receipt was issued to secure the entire' indebtedness of the Robb-Lawrence Company to plaintiff, and that such indebtedness was in excess of the value of the property as found by the jury.
Appellant next complains of the court’s refusal to give a certain cautionary instruction to the jury relative to their consideration of the testimony given by one of the plaintiff’s attorneys. \The requested instruction was no doubt correct as an abstract proposition; but its refusal in this case was not prejudicial. The testimony of -this witness relates solely to a written demand for this property claimed to have been served on the Robb-Lawrence Company by said witness in plaintiff’s behalf. Such demand was not -seriously controverted. In fact, Lawrence, the secretary of the Robb-Lawrence Company, testified that the written demand (Exhibit N) was delivered to the Robb-Lawrence Company. Furthermore, this alleged error, as well as the two preceding ones, is not properly before us, and cannot be- considered for the reason that they are not properly specified in the notice of intention to move for a new trial. Section 7065, subd. 3, provides: “When the motion is to be made upon the minutes of the court and the ground * * * * ■of the motion is .error in law occurring at the trial, and. excepted to by the moving party, the notice of intention must specify the particular errors upon which the party will rely. If the notice does not contain the specifications herein stated, and the motion is made on the minutes of the court, the motion must be denied.”
The only specification of errors in law occurring at the trial contained in the notice of intention to move for a new trial, other than the specifications relating to the rulings in refusing to direct a verdict, is as follows, and not otherwise: “(a) Errors of the ■court in the admission and exclusion of evidence, (b) Errors of the court in instructions to the jury and in refusing to give to the jury certain instructions asked by the defendant the Northern Trust Company.” Such specifications of error are manifestly insufficient ■under the statute aforesaid; and hence the motion for a new trial, in so far as such alleged errors are concerned, was under the statute properly denied.
The remaining points urged in appellant’s brief relate to alleged ■errors in the instructions to the jury, and need not be noticed for the reason last stated.
Finding no reversible error in the record, the judgment appealed from is affirmed.