Grange Co. v. Farmers' Union & Milling Co.

McLAUGHLIN, J.

On September 8, 1904, the appellant corporation sold two carloads of wheat, and one carload of oats to A. B. Costigan & Company of San Francisco, who directed that the grain be shipped to them, care of the Farmers’ Union and Milling Company, at Stockton. The grain was

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loaded and shipped according to directions, and the shipping receipts were sent to the purchaser’s office in San Francisca The wheat was shipped on September 12th and the oats two days later. On the last-mentioned day the appellant issued its draft upon A. B. Costigan & Company, payable to the First National Bank of Modesto for the sum of fifteen hundred dollars, and on September 15th, this draft was returned after dishonor and protest. A. B. Costigan & Company filed their petition in bankruptcy about 4 o’clock on September 16th, and three-quarters of an hour thereafter the shipping receipts were, pursuant to directions previously given, mailed to the appellant at Modesto. Upon receiving notice that the draft had been protested, the vice-president and assistant manager of appellant went to San Francisco, and was informed of the bankruptcy of Costigan & Company, and of the return of the shipping receipts. He returned to Modesto, procured the shipping receipts and went to Stockton, where, on September 17th, he notified the railroad agent not to deliver the grain to respondent, but was informed that it had already been delivered. There can be no question that the grain had been delivered and unloaded by respondent before appellant took any steps to prevent its delivery according to the billing instructions, which required that it be delivered to respondent. The carload of oats was delivered after the wheat. It reached Stockton on September 15th, was placed in the private yard on the private tracks of respondent on the 16th, and unloaded on the morning of the 17th

before

appellant had notified the railroad agent not to deliver it, and before said agent had communicated with respondent.

The business of respondent with A. B. Costigan & Company was generally a warehouse business. At times respondent loaned them money on grain in the warehouse. On July 13th, 1903, an agreement was entered into between A. B. Costigan and respondent, by the terms of which all grain and grain bags, stored with the latter, became pledged as security for advances made to A. B. Costigan & Company. Just prior to the delivery of the grain in question, the respondent made certain shipments of grain for their pledgor with the distinct understanding that it was to be replaced with grain to be shipped by appellant within a few days. At no time subsequent to July 13, 1903, was respondent acting as the mere