Deaux v. Trinidad Bean & Elevator Co.

WILSON, J.,

pro

tem.

This action is upon several assigned claims growing out of similar transactions between respondent’s respective assignors, who were bean growers, and the

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appellants. The facts are the same in each transaction. The appellant Allard was the agent of the appellant Trinidad Company, hereinafter referred to as the company, and as such presented a plan to the growers whereby they delivered beans to the company in 1930, and received a loan thereon. Storage receipts were issued by the company, headed “Storage Receipt and Agreement”, the pertinent language of which is as follows: “Received the following described beans to be delivered to the order of-, in warehouse California, subject to all the terms and conditions herein contained, upon return of this receipt properly endorsed. . . . Said beans to be kept fully insured under this receipt against fire without liability for loss or damage from other causes beyond control. It is hereby specifically agreed that delivery will be made to the holder of this receipt upon its proper endorsement and surrender, beans of equal grade and of the same variety in public warehouse at a California shipping point, at the election of the holder” upon ten days’ notice. The receipt stated that no charge for storage or insurance would be made prior to June 1, 1931, “unless the above described beans are sold to other than” the company, in which event a stated charge would be made. When the beans were received by the company they were stored in warehouses in its name. Subsequently, in some cases immediately upon receipt of the beans, the company shipped the same to. various points outside California without the knowledge or consent of the growers. This action is to recover the value of the beans.

The receipt can be given but one construction, to wit, that the beans stored were to be delivered to the order of the respective growers. Each grower retained title to his beans. The delivery to him of other beans ‘ ‘ of equal grade and of the same variety”, was an election to be exercised by him, and, unless exercised, he was entitled to receive the identical beans which he had delivered to appellants. Cases cited by appellants in which receipts expressly provided that commodities of equal test, or of equal value, or of equal quality might be returned are of no assistance. This contract did not pass title to the company. The latter was not entitled to treat the property as its own, but was bound to return the same upon demand and upon payment of all charges due under the contract. The exercise by the appellants of dominion over the