DISSENTING OPINION. I find myself unable to concur in the conclusion reached, and in the reasoning by which the same was reached, as stated in the principal opinion herein.
In the principal opinion it is said: "It is to be observed that there is no challenge of the validity of the warehouse receipts set out in these paragraphs, and held to secure the loan to the Odells evidenced by the notes therein set out." These receipts being admittedly valid, the prime question now to be considered is as to their legal force and effect. What right did the holder of these receipts have in and to the property therein described?
Warehouse receipts were not negotiable at common law, but have been quite generally made so by statute. These receipts, being admittedly valid contracts of bailment we shall consider their legal effect at common law.
At common law a warehouse receipt was a contract of bailment and its indorsement, by the bailor, and delivery to a third person, carried the title and constructive possession of the thing bailed and therein described, to the holder thereof.Livingston v. Anderson Son (1907), 2 Ga. App. 274, 58 S.E. 505; Montgomery Ward Co. v. Am., etc., Bank (1897),71 Ill. App. 20; Peck v. Armstrong (1862), 38 Barb. (N.Y.) 215;Shepardson v. Cary, Exr. (1871), 29 Wis. 34; 40 Cyc. 411. The transfer of the warehouse receipt had the same effect as the delivery of the goods themselves and operated to vest in the assignee the assignor's title to the goods, and also his constructive possession. Allen, etc., Co. v. Maury *Page 170 Co. (1880), 66 Ala. 10; Spangler v. Butterfield (1882),6 Colo. 356; Western, etc., R. Co. v. Wagner (1872), 65 Ill. 197.
The indorsing and delivery of a warehouse receipt for goods, as collateral security for a bona fide indebtedness, passes to the indorsee all the interest of the bailor in the goods bailed.Toner v. Citizens State Bank (1900), 25 Ind. App. 29, 56 N.E. 731.
Under these authorities the appellant herein was the holder of the legal title, the owner of the goods described in said receipts, and not merely the holder of a "lien" thereon, which is the theory upon which the principal opinion proceeds. Under the facts of this case, the Odells had an equity to the surplus, if any, after said debt to appellant had been paid, and it was to and upon such surplus, if any, that the said laborers had apreferred claim for the said wages earned. But they certainly had no lien thereon. The statute, under which they claim, makes them preferred creditors as to assets of the debtor coming into the hands of a receiver, etc., but nowhere declares that such claim shall be a lien. But again, if they could be said to have such lien, it could only attach to the assets of the debtor coming into the hands of such receiver, and the only item of assets, as against the appellant herein, was the equity in and to said surplus, if any, aforementioned.
In my judgment this cause should be reversed.
Neal, J., concurs in this dissent. *Page 171