Upon application for reconsideration of this cause, counsel for appellee earnestly insists that the statutory provision of the Uniform Warehouse Receipts Act, above noted, was intended to and did change the previously existing rule as to the right of the warehousemen to defend in an action by the original bailor by showing that he surrendered the property to a superior title. Particular stress is laid upon section 10525, Code of 1923, but that section contains exceptions, one of which is the exception as to section 10513, wherein it is provided that —
"A warehouseman is justified in delivering the goods, subject to the provisions of the three following sections, to one who is — (1) The person lawfully entitled to the possession of the goods, or his agent."
Clearly no change as to the former rule could be inferred from such language, but rather a recognition thereof. The argument of counsel, reduced to its last analysis, seems to be that the warehouseman is liable in any and every case where delivery is made without a production of the receipt, regardless whether the receipt is negotiable, or, if so, whether or not it has in fact been negotiated. But the statute does not so provide, and if so intended, it would have been a simple matter to have been so expressed. Such was the language of the statute dealt with by the New Jersey court in Wheeler Wilson Mfg. Co. v. Brookfield, 70 N.J. Law, 703, 58 A. 352, cited in note to 40 Cyc. p. 443. The holding in conformity with the rule is still generally recognized by the authorities. 40 Cyc. 442, 443; 27 R. C. L. 983.
Our attention has not been directed to any authority construing a similar statute to the contrary of this holding, and we do not think the legislative intent was to work a change in the rule in a case as here presented. Indeed, the lawmaking body deemed it necessary to specifically provide for liability of the warehousemen for delivery of the goods without taking up the receipt therefor, when such receipt had been negotiated to a purchaser in good faith. Section 10515, Code 1923.
The above-noted statute and its various provisions were duly considered upon original consideration of this cause, though not discussed in detail. We entertain the view that the language used did not justify the conclusion that a change was intended as to the rule of law in this particular character of case.
In response to the earnest argument of counsel for appellee, we have again examined the provision of the statute, and find no reason for a contrary opinion.
The application for rehearing is denied.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.