1. This was an action of trover for thirty-nine bales of cotton, against Baggs, a warehouseman, by Patten, who sues as a purchaser of the cotton through several intermediate vendees, from Hull, the original bailor of the cotton. Waiving the question (which is not by any means clear) whether any one but the original bailor can sue until the bailee has accepted the vendee as his bailor, it is undoubtedly true, that the vendee must make out a clear title. The bailee is not to be made chargeable to a third person, with the least doubt as to his liability to be called upon by somebody else. A judgment in favor of Patten would be no bar to a suit by Hull, or by anybody else who could show the cotton was his.
It is, therefore, of special importance that, in making out his case, the plaintiff should be required to produce the best evidence possible of his right. He does not produce Baggs’ receipt, in which the cotton is described by marks and weights, but undertakes to show by Bloom, that Baldwin sold the cotton to Griffin, and that Baldwin had then Baggs’ warehouse receipt. He does not say who the receipt was given to. Bloom further says that this sale from Baldwin to Griffin was by written invoice. We think the Court was right in requiring this invoice to be produced.
One of the first requisites to a valid sale is the identification of the property: Revised Code, section 2587. One bale of cotton is very much like another. Baldwin might have had several receipts of Baggs’, given to different persons for cotton. How was the jury to know that it was the Hull cotton that was sold ? The production of the invoice would show. As is the custom with cotton dealers, this invoice would have given the marks upon the cotton, and most probably the weights, so that it could be seen if this was the Hull cotton. It was a material link in the chain of the plaintiff’s title.
We do not say that in all cases where personal property *173is sold, and a bill of sale is written the bill of sale, is the only-mode of proving the transaction. Ordinarily the title to personal property passes by delivery. But in a case like this, when there is no delivery, and where the suit is by a vendee, from the bailor, against the bailee, the title depends almost exclusively upon the writing; because by that only can the property be identified. To permit thirty-nine bales of cotton, in a warehouse, with perhaps thousands of other bales, to be sold one hundred miles away, and the marks and brands identified by parol, when it appears affirmatively that it can be done by the production of a paper, executed at the time, would be, as it seems to us, a violation of principle.
2. A warehouseman occupies a peculiar position. Assuming that the cotton he has in chai’ge may be sold to a third person by the mere indorsement of the warehouse receipt, is it not very clear that he has a right to require any one claiming the cotton to produce his receipt? Has he not a right to require of the claimant the same evidence as the maker of a promissory note has before he pays it? It is admitted here that Baggs’ receipt was to deliver the cotton to Hull’s order, and it is not pretended that Hull ever did more than indorse the receipt in blank. We think the warehouseman had a perfect right to demand either the receipt or indemnity of any person claiming to be the purchaser of the cotton, and that his refusal to deliver without some protection of this kind did not, per se, make a conversion. But it is said the receipt is traced to his (Baggs’) own custody, that he acknowledged Patten to be the true owner, and that he is, consequently, estopped from denying it.
We recognize the rule that, in general, a bailee cannot deny the title of his bailor, and that the recognition of a vendee of the bailor as the owner, puts the bailee in the same position, as to the vendee, as he was to the original bailor : Story on Agency, section 217; 1 Cowen, 691; Story on Bailment, sections 818, 452. Though perhaps this doctrine *174is in this State to be qualified by section 2050 of our Code, so far as to permit the bailee to do this, if there is an outstanding title actually being enforced against him.
But we think the Court, in his charge to the jury, on this question, put the law rightly. He told them that it was a question of good faith, on the part of the bailee. His acknowledgment of the right of Patten, and his acceptance of him as the bailor’, was a qualified one at the time. It was, perhaps only fairly — a mere courtesy. “ I do not doubt your word, but I am not safe with my receipt out. Bring me my receipt or indemnify me.” He set up no outside title. He did not admit Patten to be the bailor. It was, at least, a mere statement, to the effect that Patten seemed to be the owner, but that his title was defective. We do not think this evidence amounted to such a recognition of Patten as made him Patten’s bailee, so as to estop Baggs from requiring Patten to show title, and we hold that the rule referred to does control this case.
"Without doubt, if the receipt was really in Baggs’ custody, indorsed by Hull, it was very unfair for Baggs to insist on its production. But that was not clearly made out by Cook. Both Baggs and Allen deny it, and the Court left this fairly to the jury, when he said to them, that Baggs’ refusal to deliver to Patten until the receipt was produced, etc., must be bona fide, and be only a prudent act upon his part, for his own protection. If the receipt, indorsed by Hull, was already in his possession, his excuse was a mere subterfuge, and, under the charge of the Court, his refusal was tortious and a conversion. But we think the evidence, that Baggs had the receipt, is not at all conclusive. _ There were two receipts — one given by the planter to Hull, and one given by Baggs to Hull; and we think the inference is strong that Cook refers to the planter’s receipt, which was produced on the trial.
Especially does it fail to appear that Hull ever indorsed Baggs’ receipt to anybody. This was a sine qua non, in the *175plaintiff’s case. It is admitted that, by its terms, it was to Hull or his order. Could Baggs safely deliver without this order? Even if the receipt had been present, could the plaintiff get along without proof, on the trial, that the indorsement was genuine?
We think the Court was right in his charge. It was a question of good faith on the part of Baggs, and the jury liave found in his favor. As to the seizure of the cotton by the military, it would be very hard to hold the warehouseman liable. He did his best, acted with extraordinary diligence. Upon the whole, we think it only fair that the contest between the United States and these parties, over this cotton, ought not to be cast on Baggs.
Judgment affirmed.