White v. Hoyt

Robinson, J.

There is no conflict in the testimony as to the fact proven by the plaintiff, that all the barley received by him from Gordon & Son, to be stored and malted, was under an entire contract made in October, 1872, for the malting of 20,000 bushels of barley at twenty-three cents per bushel, aud that under that agreement about 19,000 bushels were delivered and malted, the proper charge for which was $4,358 36, of which Gordon & Son paid but $1000 on account ; that the malt came in three different parcels, which, except some 10,335 bushels represented by two receipts of plaintiff, had been delivered Gordon & Son. These receipts *235were in no sense “Warehouse receipts,” under the General Warehouse Act, as the storage contemplated was for the purpose of converting the barley into malt. In May, 1873, Gordon informed plaintiff he was about to fail, and had transferred the grain to defendants, and that they would pay the balance of his bill. The barley was received by plaintiff in four or five different lots, for two of which, representing somel0,334 bushels of barley, defendants held the plaintiff’s receipts, deliverable to the order of and indorsed by Gordon & Son, acknowledging the receipt of such barley on storage “ to be manufactured into malt, and the product thereof” delivered to the order of Gordon & Son “on payment of the charges accrued thereon, in accordance with marginal note hereto,”' which was “storage and labor as per agreement per month.” All of the barley (malted) that had been delivered plaintiff under the original agreement had been returned to Gordon •&> Son, except the quantities represented by these receipts, and they had paid the plaintiff but $1,000 on account.

Under such circumstances the plaintiff had a general lien upon all the barley thus received and malted by him for the amount agreed to be paid him for storage and labor in the process of malting the whole quantity, and for this he should recover unless he has agreed to a severance of his lien and agreed to look to the particular lots represented by the receipts held by defendants onty for the amount for which they should alone be chargeable at the price, pro rata, per bushel agreed upon for storage and labor in malting the whole quantity.

It cannot be discovered from any evidence offered in the case that any such idea of severance of plaintiff’s lien, or the confining of his claim to such lien under the entire contract-proved, should be confined to the barley or its malted products represented by the receipts held by the defendants, for any aliquot part of the -price agreed to be paid for the-storing and malting of the whole quantity delivered plaintiff under the original agreement with Gordon & Son, or that any idea of that character was ever suggested by the defendants until after they had obtained possession of all of the *236malt. On the contrary, the defendants appear to have acted at least in disregard of any prudential caution (if any- of their rights depended upon it) in ascertaining what was the special agreement referred to in the receipts as to the storage, labor, ■etc., contemplated in the contract for the storage and inalL ing of the barley. They went through the unnecessary formality of procuring a clerk of plaintiff to indorse on these receipts the words “ not transferable,” under some impression that although the barley was stored to be malted, they were subject to the provisions of the General Warehouse Act. In the latter part of May, or early in June, 1873, on inquiry by an agent sent for that purpose, they were informed that t'he malt would not be delivered on mere payment of the specific charge for malting the barley called for by the. two receipts they held, but for the balance of $3,358 36 due from Gordon & Son. Without further discussion as to the propriety or particulars of this charge, they, on subsequently asking the delivery of the malt represented by exhibit No. 1, wrote, requesting a delivery, saying, “of course we consider ourselves bound for the payment of the charges on the malt.” To this plaintiff'replied, “ I would like to have the storage-house receipt returned, and to know if you guarantee the ■claim I have against the malt.” To this they did not object, but received the delivery of the whole June 28th and 30th, ■and July 4th. On July 6th, plaintiff again presented his bill for the said balance of $3,358 36, on which defendants paid ■'$2,500 on account, stating they had not had time to examine the.account; but on a subsequent occasion they claimed they were liable only for the specific charges of twenty-three ■cents per bushel for the storage and labor of malting the ■quantities represented by their receipts.

The claim was untenable. The barley represented by their receipt was delivered plaintiff to be malted under an entire contract with Gordon & Son, and was subject to the lien of plaintiff for what was done in that respect to the entire lot. On taking a transfer from Gordon & Son of the receipt for these two lots or parcels, they were apprised the barley in its storage and manufacture into malt was subject *237to a special agreement, and whether so apprised or not, they took only such title as Gordon.& Son had, and subject to all liens upon it enforceable as against them. So also before taking possession of the goods they were, apprised of plaintiff’s claim of $3,358 36, and without questioning it wrote “ they considered themselves bound to pay the charges on the malt.” Upon a bill presented therefor, after the delivery, they paid $2,500, and only asked delay to examine it without suggestion or question as to the general claim distinctly presented by plaintiff throughout, and never questioned, in the particular now sought to be asserted, to wit, that the malt delivered them was only subject to a specific charge, and they only responsible on their promise (on which the malt was delivered) to pay a specific charge of twenty-three cents per bushel for storing and malting the amount of barley represented by the receipts which they held, without regard to the claim of plaintiff thereon, for the balance due for malting the entire quantity delivered him by Gordon & Son for that purpose under the original agreement. Plaintiff’s right of recovery and the inefficiency of any of defendant’s objections appear clear to me. I am, therefore, for affirming the judgment.

Charles P. Daly, Ch. J., concurred.

Labremore, J., dissented.

Judgment affirmed.*

This decision was affirmed by the Court of Appeals May 21st, 1878.