Horr v. Barker

Burnett, J., after stating the facts, delivered the opinion of the Courts—Terry, O. J., concurring. The counsel of defendants insist that there was no sufficient segregation of the three hundred and twenty-four barrels from other flour. But it is unnecessary to notice this point, as it was determined by this Court when the case was here before, October, 1856. The segregation was decided to have been sufficient.

The next point made by defendant to sustain the order of the Court below in granting á new trial, is that the possession by plaintiffs of the warehouse-receipt issued to West, was no evidence of a sale by West to them, as the receipt was not endorsed, and no other proof was given of an actual sale.

Prom the testimony, the proof would seem ample to justify the conclusion that West was the broker of defendants, and fully authorized to sell the flour. The only question left is, whether the evidence was sufficient to sustain the verdjet of thw jury, that there was a sale of the three hundred and twenty-four barrels to plaintiffs.

Chancellor Kent laid it down that “ the delivery of the receipt [614]of the store-keeper for the goods, being the documentary evidence of the title, has been held to be a constructive delivery of the goods.” 2 Kent, 500. And he refers to the case of Wilker & Fontaine v. Ferris, 5 John. R., 335. The case referred to seems to sustain the position in the text, although the facts of the case are not very clearly stated as to the question whether the storekeeper’s receipt was endorsed, or not. So, it is stated in Story on Sales, § 311, that “the delivery of the key of a warehouse containing the goods sold, or of the bill of lading of goods at sea, or of the receipt, ticket, sale-note, dock-warrant, certificate, bill of parcels, or other usual type and evidence of title to goods in the situation of those sold, will be a sufficient constructive delivery of them to pass the title.” “ So, also, the delivery to the vendee of an order on the warehouseman in whose warehouse the goods are stored, is sufficient to pass the title, but not to destroy the lien of the vendor.” § 312. The same doctrine is laid down in Story on Contracts. §§ 810, 792.

It was said by Gardiner, C. J., in delivering the opinion of the Court, in the case of Brown v. Peabody, 3 Ker., 126, that “ the receipts, although recognized as prima facie evidence of property in the thing receipted, in those who have them in possession, do not, it is presumed, enter into the currency, and, like bank-notes, become the property of a bona fide holder.” The receipts, in that case, had been stolen, and the holder, upon that fact being established, was held not entitled to the property mentioned in the receipts. So, in the case of the Bank of Rochester v. James, 4 Cow., 497, it was said that the title to goods might be transferred by the delivery of the bill of lading, if done with that intent. The same was substantially stated in Stanton v. Small, 3 Sand-ford, 240.