In November, 1920, three bales of cotton were deposited in the Farmers' Union Warehouse Company for and on account of Barnett Bros., a partnership composed of J. E. Barnett and J. G. Barnett, for which negotiable receipts were issued and held and owned by said Barnett Bros. Some time thereafter Roberts, Luther Co., claiming the cotton, entered suit in detinue against the warehouse company (to so designate it for brevity) and recovered a judgment therefor. The warehouse company made no resistance to the suit, nor was notice thereof given to Barnett Bros. Barnett Bros. subsequently brought this suit against the warehouse company to recover damages for the loss of this cotton. From a judgment in their favor the defendant has prosecuted this appeal.
The relationship existing between Barnett Bros. and the warehouse company was that of a bailor and bailee. Upon the suit being brought by Roberts, Luther Co., to plead any judgment recovered as a defense to the action brought by the bailor, the bailee should have given notice thereof to the bailor that the title of the bailor be defended. Such notice, however, was not given, and the judgment recovered by Roberts, Luther Co. constituted no defense to the suit. Powell v. Robinson, 76 Ala. 423. But the warehouse company sought to defend by showing a superior title in Roberts, Luther Co.
"The general rule is that the bailee is not permitted to set up a justertii or title of a third person in himself. But when the bailor had no valid title, the bailee may on demand deliver the goods bailed to the rightful owner, and this would be a good defense to an action brought by the bailor, the onus being on the bailee to establish the defense." Jackson v. Jackson,97 Ala. 372, 12 So. 437.
"The reason of this rule is, that the bailee of the goods can be in no better situation than the bailor from whom he received them, and the true owner, or other person entitled to their custody and having a special property in them, can sue either the bailor or bailee, and recover from them. And no man shall be rebuked by the law for doing what the law would compel him to do." Young v. East Ala. Ry. Co., 80 Ala. 100.
See, also, 6 Corpus Juris, 1109; Ex parte Farmers' Union W. H. Co. (Hooper v. Farmers' Union W. H.) 213 Ala. 448,105 So. 728.
It is not questioned by counsel for appellee that under this general rule of law recognized in this state, and by the authorities generally, the bailee may yield possession of the property to a paramount title, and thus defend himself in an action by the bailor, assuming of course the burden of showing that the title to which he yielded was in fact paramount to that of the bailor. But it is insisted this rule has been changed by the provisions of sections 10505-10564, Code of 1923, known as the Uniform Warehouse Receipts Act, especially where negotiable receipts have been issued.
The recent case by the Mississippi court of Love v. People's Compress Co., 137 Miss. 622, 102 So. 275, cited by counsel for appellee, dealt with the provisions of the statute of that state corresponding with section 10531, Code 1923, and in a case where the receipts had been negotiated and were held by a purchaser in good faith. The above-cited section, however, and the Mississippi authority are not here applicable.
The receipts have not been negotiated, but are held by the original owners who were the bailors. Nor does the defense here attempted to be interposed bear relation to the suit brought or judgment obtained by Roberts, Luther Co. So far as this defense is concerned that suit may be ignored. The defense rests upon the common-law right of the bailee to yield to a paramount title, the bailee assuming the burden of proof. There are certain provisions found in the statute for the protection of bona fide purchasers of these negotiable receipts, but with these we are not here concerned, as no such situation is here presented.
The sole question now for consideration relates to the right of the bailee as against a suit by the bailor to show that the property was delivered to one possessing a paramount title. Our decision is thus confined by the facts of this case. We do not find any provision in the Uniform Warehouse Receipt Statute, above noted, that changes the general rule as to the right of the bailee to interpose this defense, as against an action by the bailor when the rights of the original parties only are involved. We express no opinion as to any different state of facts or circumstances. The record is incumbered by much pleading, and there are many assignments of error, though we have herein treated the only question of major importance on this appeal. The rulings of the court upon this question are presented in various ways unnecessary here to enumerate. Confessedly these rulings inhibited the defense herein considered, which was sought to be interposed. In this the court committed error, for which the judgment must be reversed. It is so ordered.
Reversed and remanded. *Page 204
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.
On Rehearing.