Otis v. Overland Terminal Warehouse Co.

WHITE, J.,

pro tem.

— This action was prosecuted by plaintiffs against defendant Overland Terminal Warehouse Company for refusal to deliver certain sugar to plaintiffs in conformity with the provisions contained in a nonnegotiable warehouse receipt issued by plaintiffs. The cause was dismissed as to all defendants except Overland Terminal Warehouse Company and after trial before the court judgment went for defendant warehouse company, from which judgment this appeal is taken.

On May 9, 1934, 4,470 bags of sugar were deposited in the warehouse of Overland Terminal Warehouse Company by one Charles E. Jones and a nonnegotiable receipt was issued covering the same to “Otis, McAllister & Co., c/o Jones Brokerage Co.” During the months of May, June and July, 1934, a total of 94 bags of such sugar comprising eight small lots, were withdrawn from the warehouse on orders signed “Otis, McAllister & Co., per Jones Brokerage Co., per Jones.” These withdrawals were the result of sales activities by plaintiffs and Jones Brokerage Company. It does not appear that appellants gave any express directions to respondent company nor to Jones Brokerage Company as to the method of making a physical transfer of the sugar to the prospective purchasers. In the case of the eight small lot withdrawals, after respondent had recognized Jones’

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withdrawal orders the latter advised appellants of the fact of withdrawal, delivery to the purchaser, and the terms for billing the commodity. Subsequently, on orders signed by Jones, 2,000 bags of the remaining consignment of sugar were pledged to the Continental Can Company, and 775 bags were pledged to the respondent company by Jones, acting for his own benefit. It is the sugar so pledged that is involved in this suit, which is predicated upon "the refusal of respondent to deliver the commodity to appellants.

As grounds for reversal, among others, appellants contend that there is in the record no evidence of sufficient substantiality to show that Jones possessed authority as an ostensible agent to pledge the goods, nor to show a sale by the appellants to Jones entitling the latter to possession thereof. The trial court found that on August 7, 1934, all of the sugar then on hand in respondent’s warehouse, totaling 4,376 bags, was sold by appellants to Chas. Elsmere Jones, doing business as Jones Brokerage Company, and that thereafter Jones for a valuable consideration made the pledges hereinabove referred to. The court further found that at the time of the making of said pledges Jones was the owner of the sugar, had the right and authority to make the pledges and that the same were and are valid. We shall first give attention to this finding, because if it is supported by the evidence, and Jones was the legal and lawful owner of the sugar by purchase from appellants, that would be determinative of this appeal.