Akron Cereal Co. v. First National Bank

HARRISON, P. J.

Action for conversion. Judgment was rendered in favor of the plaintiff, and the defendant has appealed.

The facts out of which the plaintiff’s cause of action arose, as developed at the trial, are as follows: The plaintiff is a corporation organized under the laws of Ohio, and engaged in that state in the manufacture of an article of merchandise known as “Mother’s Oats”; and on March 15, 1900, shipped by railroad from Akron to San Francisco three hundred and fifty cases of this merchandise. At that time, J. R. Moler & Co., a firm doing business in Denver, was acting as manufacturing agent for the plaintiff in several cities, and had one F. Ingold as its own agent and representative in San Francisco. The merchandise so shipped by the plaintiff was consigned to its own order, with a direction on the bill of lading “Notify J. R. Moler, 109 California street, San Francisco, Cal.” Upon its arrival in San Francisco the merchandise was first stored in the warehouse of the Haslett Warehouse Co., and was entered on- its books in the name of ‘‘ The Akron

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Cereal Co., c/o F. Ingold.” October 20, 1900, at the request of Ingold, two hundred and ninety-two cases of the merchandise were transferred upon the books of the warehouse to the name of “J". R. Moler

&

Co., c/o F. Ingold. ’ ’ No warehouse receipts were issued in either case. November 8th, one hundred and forty cases, and November 9th, one hundred and twenty-eight cases, were withdrawn from this warehouse by Ingold, he signing “J. R. Moler & Co., per F. Ingold,” to receipts therefor from the warehouse. Ingold was himself a manufacturing agent, and was also engaged in business in San Francisco upon his own

account;

and about this time he applied to the defendant for a loan of $500, offering two hundred and fifty cases of the above merchandise as collateral security therefor, stating that it belonged to him and was stored in a warehouse in the city in his name. Upon being told by the defendant that it would require a warehouse receipt therefor to be issued in its own favor, he shortly thereafter presented such a warehouse receipt from the Lowell warehouse, and received from the defendant $500, for which he gave his promissory note and the said warehouse receipt as security therefor. At the expiration of thirty days he paid the defendant $250 upon'the account of this loan, and soon after left the country and was not again heard from. In April, 1901, the defendant sold the merchandise for $498. out of which, after deducting the expenses of the sale, it reimbursed itself for the loan and some other expenses, and has in its hands a small balance to the credit of Ingold. Upon these facts, the superior court held that the plaintiff was at all times the owner of the merchandise; that the defendant had converted it to its own use, and thereupon rendered judgment against the defendant for $498.