Boas v. De Pue Warehouse Co.

TYLER, P. J.

Action to recover the sum of $465.20 paid under protest to a warehouseman for storage.

The controversy arose out of the following transaction: In the year 1913 three Cole automobiles were shipped to San Francisco by the Cole Motor Car Company, Peoria, Illinois, the Santa Fe Railway Company being the carrier. The cars were consigned to Cole Motor Company at San Francisco, and the carrier was advised by the consignor to notify the latter company of their arrival. The consignor mailed the bill of lading with draft for purchase price attached to the consignee. The cars arrived, and the bill of lading not being presented to the carrier and the freight not having been paid thereon, the railway company on June 21, 1913, stored them with the defendant company herein, and in accordance with

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the established custom such company paid the freight due the carrier and issued its receipt to it. This receipt showed that the machines were stored for the account of the carrier and was marked “non-negotiable.” Some five months thereafter and in November, 1913, the consignee, through its representative, one W. G-. Davis, obtained from the carrier the warehouse receipt (the draft attached to the bill of lading having in the meantime been taken up). This receipt was thereafter presented to defendant warehouseman by Davis, who requested that company to reissue separate receipts in the name of J. Boas, one for each car. The company complied with this request. Bach of the receipts bore date June 21, 1913,. the date upon which the cars were originally stored with the company, and they also were marked “nonnegotiable.” At the time the new receipts were issued Davis knew that the defendant warehouseman had paid the freight charges on the cars in accordance with the custom in San Francisco, and that it was claiming a lien thereon. Boas some time thereafter withdrew one of the ears from storage without defendant claiming its lien thereon for the freight or other charges. Subsequently it was attempted to remove another of the cars, whereupon the defendant demanded the full sum of its freight and storage charges, amounting to the sum of $540.20. The charges so demanded were paid under protest. Thereafter J. Boas brought this suit to recover the amount so paid, less the amount of storage charges accruing after the issuance of the new receipts mentioned. It was his claim in the trial court, and the same contention is here made, that the defendant had no lien for the freight charges or for any storage charges incurred prior to November 3, 1913, when the new receipts above mentioned were issued; in other words, that he was only liable for storage charges in the amount of $75, and that he was compelled to pay a sum in excess of this amount, viz., $465.20, the amount in suit.