Adams v. Gorham
Before: Heydenfeldt
Synopsis
Where A. had a large quantity of flour stored in the warehouse of B., and sold a portion of it to 0., and gave an order for the flour sold on B., who accepted the same and gave C. in exchange a receipt for the same, and transferred it on his warehouse books to the account of 0., but did not separate any specific portion from the flour of A. as the property of B., and 'the whole was subsequently seized in an action against A., Held that the Sheriff was not liable to 0., in the absence of segregation of tho flour, hut that B. was estopped by his receipt from denying his liability.
The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray concurred.
This action being for the recovery of specific property, it was necessary to show, as against the sheriff, that the portion claimed by the plaintiffs had been severed, and designated from the bulk out of which it was sold. Otherwise there is no mode of identification. This results from the character and nature of the action.
But, in favor of the other defendants, Tilden & Little, the same reasoning cannot be invoked. They were warehouse men, and gave their receipt for three hundred barrels of flour. This was specific, and they.are estopped from denying their liability. It is very similar to the case of Chapman v. Searle, 3 Pickering, cited by respondent.
The Court below should have given judgment for plaintiffs, against Tilden & Little, and judgment for defendant, Gorham.
Non-suit set aside, and case remanded.
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