delivered the opinion of the court:
McReynolds was convicted of a violation of section 125 of chapter 38, Hurd’s Revised Statutes of 1905, in the criminal court of Cook county, and sentenced to the penitentiary. He has sued out a writ of error for the purpose of having the record reviewed by this court.
That section of the statute refers to the section immediately preceding it, and the two read as follows:
“Sec. 124. Whoever fraudulently makes or utters any receipt, or other written evidence of the delivery or deposit of any grain, flour, pork, wool, salt, or other goods, wares or merchandise, upon any wharf or place of storage, or in any warehouse, mill, store or other building, when the quantity specified therein has not in fact been delivered or deposited as stated in such receipt or other evidence of the delivery or deposit thereof, and is not, at the time of issuing the same, still in store, and the property of the person to whom or to whose agent the receipt is issued, or for the whole or any part of which any other receipt is outstanding, or uncanceled, shall be imprisoned in the penitentiary not less than one nor more than ten years.
“Sec. 125. Whoever, having given any such receipt or written evidence of deposit or storage as is specified in the preceding section, or being in the possession or control of such property, shall sell, encumber, ship, transfer, or in any manner remove from the place of storage,- or allow the same to be done, any such grain, flour, pork, wool, salt, or other goods, wares and merchandise, without the written consent of the holder of such receipt or other evidence of deposit or storage, except in cases of necessity for the purpose of saving such property from loss or damage by fire, flood or other accident, shall be imprisoned in the penitentiary not less than one nor more than ten years.”
The indictment charges that McReynolds, on September 19, 1905, had in storage in a building commonly called a grain elevator, of which he was possessed, in Cook county, 4670 bushels and forty pounds of corn, and that he made a receipt and written evidence of the deposit of that corn in that elevator, which recited that the corn was subject only to the order of McReynolds thereon, and that on the 25th day of September, in the county of Cook, McReynolds delivered the document to the Corn Exchange National Bank of Chicago, a corporation, which thereupon became the holder thereof, and that thereafter, on January 18, 1906, without the written consent of the bank, which was still the holder of the document, McReynolds removed from said building "a certain large amount of said grain, * * * to-wit, all of the said 4670 bushels and forty pounds of said grain.” By proper averment the exception in section 125, supra, was negatived. It is conceded that the averments of the indictment as they are above recited are in accordance with the facts, except it is contended that the corn was not all removed, but, on the contrary, that about 3000 bushels thereof remained in the elevator.
McReynolds was engaged in the grain business in Chicago, where he owned the elevator mentioned in the indictment. So far as appears from this record he "used his elevator exclusively for the purpose of handling grain owned by him, and did not receive therein, for any purpose, personal property owned by any person other than himself. The receipt or written evidence of deposit in question is as follows:
“Elevator A. No. 2501.
McReynolds Elevator Company.
Lbs. 261560 Bush. 4670 Lbs. 40
“Received in store from cars, forty-six hundred seventy and 40tbs. bushels of corn three (3) yellow, subject only to the order hereon of McReynolds & Company and the surrender of this receipt and payment of charges.
“It is hereby agreed by the holder of this receipt'that the grain herein mentioned may be stored with other grain of the same grade by inspection.
“This grain is subject to regular rates of storage, loss by fire or heating at owner’s risk.
MdRsra0UJS Elevator Company, H. T. Pardee, Secretary
So far as this suit is concerned, the names “McReynolds ■ Elevator Company” and “McReynolds & Company” were mere trade names used by McReynolds. On the day of its date, McReynolds, in the name of “McReynolds & Co.,” by endorsement written on the back of the receipt, assigned the same to the bank, and delivered it, together with a number of other like receipts similarly endorsed, to the said bank to secure his note for $100,000. On January 19, 1906, the bank held receipts of this character, including the one involved in this suit, to secure said indebtedness, for corn in the said elevator to the amount of 75,854 bushels. On that day bankruptcy proceedings were instituted against McReynolds, and it was then found that there were but 2992 bushels of corn in the elevator. It is not clear whether this corn was of as good a grade as No. 3 yellow. The corn represented by the receipt described in the indictment was owned by McReynolds and was in his elevator at the time the receipt was written and transferred to the bank.
Assignments of error which question the action of the court in overruling a motion to quash each of the counts of the indictment and in passing on instructions necessitate a construction of the sections of the statute above set out.
Plaintiff in error contends in this connection, (i) “the statute, sections 124 and 125 of the Criminal Code, under' which the indictment was drawn, runs only against ware-housemen, wharfingers and other persons who conduct the business of storing the goods of others for hire;” (2) the statute does not .cover the case of one who utters a receipt or other written evidence of the deposit of his own property in his own building, but only applies where there has been an actual bailment; (3) the receipt has “no.legal effect to represent the property in the goods therein described or to convey title to the goods,” and it is therefore not such a receipt as is covered by the statute.
Section 124, supra, contemplates the delivery or deposit of certain commodities “upon any wharf or place of storage, or in any warehouse, mill, store'or other building.” Plaintiff in error contends that the rule ejusdem generis applies, and that the words last quoted in fact mean “upon any wharf or other place of storage of the same kind, or in any warehouse or other building of the same kind.” It is then asserted that the word “wharf” and the word “warehouse” have definite meanings in the law, and indicate places, where goods are received and stored for profit; that the statute only applies to places of that character and to persons who receive and store the goods of others for gain.
In 1851 a law was enacted in this State entitled “An act relating to warehousemen, wharfingers and other persons, and to prevent fraud.” (Laws of 1851, p. 9.) The first four sections of that law denounce certain acts which by that statute were made criminal. Each of those sections begins, “that no warehotiseman, wharfinger or other person,” and the rule for which plaintiff in error here contends no doubt there applied, the “other person” intended by that statute being a person engaged in a business of the same kind as that of a warehouseman or wharfinger. The statute of 1851 continued to be the law of this State until July 1, 1874. It was repealed by an act approved March 5, 1874. (Rev. Stat. 1874, p. 1011.) Sections 124 and 125, supra, were part of an act approved March 27, 1874, which went into effect on July 1, 1874, at the same time that the act-of 1851 ceased to be the law.
While the statute of 1851 was in force the constitution of 1870 was adopted, section 1 of article 13 of which reads: “All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses.” Thereafter the legislature of 1871 passed an act which was approved April 25, 1871, (Laws of 1871-72, p. 762,) and which divided public warehouses, as defined in article 13 of the constitution, into three classes, and section 25 of that act provides:
“Sec. 25. Any warehouseman of any public warehouse who shall be guilty of issuing any warehouse receipt for any property not actually in store at the time of issuing such receipt, or who shall be guilty of issuing any warehouse receipt in any respect fraudulent in its character, either as to its date or the quantity, quality, or inspected grade of such property, or who shall remove any property from store (except to preserve it from fire or other sudden danger,) without the return and cancellation of any and all outstanding receipts that may have been issued to represent such property, shall, when convicted thereof, be deemed guilty of a crime, and shall suffer, in addition to any other penalties prescribed by this act, imprisonment in the penitentiary for not less than one, and not more than ten years.”
It is at once apparent, upon a comparison of section 25, supra, with section 125, supra, as plaintiff in error states, that the latter includes persons and covers acts not included in or covered by the former. The question is, does the latter act include one who does not receive the goods of another for the purpose of storing them for profit? We think a comparison of the enactment of 1851 with sections 124 and 125, supra, aids in determining the meaning of the present statute.
It is to be observed that the act of 1851 is limited in its operation by the words descriptive of the persons to whom it shall apply, those words being, as hereinabove pointed out, “warehouseman, wharfinger or other person.” Sections 124 and 125, supra, do not contain these words, but instead, for the apparent purpose of indicating the persons at whom the statute is aimed, each section begins with the word “whoever,” which would seem to make the statute of more general application than that of 1851. If the later statute is limited, as contended by the plaintiff in error, the limitation must be gathered from the words “in any warehouse, mill, store or other building.” Do the words “mill, store or other building” mean only buildings in which goods are received in store for hire? If so, it is manifest that the words “mill” and “store,” as used in the statute, are superfluous, because both would be included in the term “or other building,” and it is certain that the word “mill,” at least, does not ordinarily indicate a place or building in which goods are stored for hire. It is a cardinal rule of construction that every clause, sentence and word in a statute should, if possible, be given effect. The rule ejusdem generis, moreover, does , not apply “where the specific words signify subjects greatly different from one another, for here the general expression might very consistently add one more variety; in such case, the general term must receive its natural and wide meaning.” (26 Am. & Eng. Ency. of Law,—2d ed.—p. 610.) If plaintiff in error’s contention that the word “warehouse,” as used in this statute, means only a warehouse in which goods are stored for hire, then the word “mill” is of such greatly different significance that the rule under discussion cannot be held to so limit the words “or other building” as that they will include only buildings in which goods are so stored. It seems extremely improbable that the legislature, by the use of the words “wharf or place of storage, or in any warehouse, mill,” etc., intended to place upon the operation of the statute on this subject, so far as persons brought within its purview are concerned, precisely the same limitation that is removed by using in the statute of 1874 the word “whoever” in lieu of the words “warehouseman, wharfinger or other person,” as found in the statute of 1851, and yet this would be the precise result if the construction of counsel for plaintiff in error be the correct one. In our opinion the legislature intended sections 124 and 125, supra, to include all buildings, of every kind and character, in which goods,- wares and merchandise are or may be stored, whether for hire or otherwise.
It is then urged that words of section 124, supra, especially those which forbid the utterance of “any receipt or other written evidence of the delivery or deposit of any grain,” etc., and those which forbid the utterance of the writing unless the goods are “still in store and the property of the person to whom or to whose agent the receipt is issued,” etc., show conclusively that the statute does not cover a writing evidencing the deposit in a building of goods belonging to the owner of that building. It may be conceded that the ordinary meaning of the word “receipt” would not indicate a writing evidencing a transaction of the kind mentioned, but there might well be written evidence that the owner of certain grain had deposited that grain in a building owned by him. If the owner made a written statement that grain owned by him had been so- deposited, and signed the same, and thereafter transferred the writing to another for the purpose of conveying the grain, that writing, as against him, would be written evidence of the deposit of the grain in the building in question, and would, we think, satisfy the requirements of the statute in that regard. Such a writing would only be regarded as “issued” when assigned, transferred or delivered by the owner of the building to some other person. If the owner of the building made such a writing and rightfully kept it in his own possession, it would, of course, be entirely ineffective for all purposes. It is when he has assigned, transferred or delivered such writing to another that it is “issued,” within the meaning of the statute.
Counsel for plaintiff in error have cited a number of cases arising in other States which they deem important in the consideration of the questions which we have just been discussing. We have examined those cases and the statutes in the various. States under which they arose, and are of the opinion that those statutes are so materially different from our own that the cases should not be given controlling effect, especially in view of the history of legislation on this subject in this State.
The receipt in the case at bar reserved to McReynolds the right to “store” or intermingle the grain with other grain of the same grade, and it was, in fact, so intermingled. It is urged that this receipt had no legal effect “to represent the property in the goods therein described or to convey title to the goods,” and that the statute does not apply for the reason that the legislature could not have intended to protect a document which was without legal effect, so far as transferring the goods or any property interest therein was . concerned. Plaintiff in error, for the purpose of showing that his view of the efféct of this receipt is the correct one, relies principally upon the cases of Union Trust Co. v. Trumbull, 137 Ill. 146, and Snydacker v. Blatchley, 177 id. 506. In the Trumbull case there was a contest between the creditors of Hall & Co., an insolvent firm. One Vehmeyer held a receipt, the legal effect of which, so far as the question now under consideration is concerned, was the same as that of the receipt in the case at bar. The firm made a voluntary assignment under the law of the State. Vehmeyer claimed a specific lien upon certain property of the character indicated by his receipt. ' The court held that certain other persons were entitled to liens upon that property and that Vehmeyer was not entitled to a specific lien, as claimed. The assets were not sufficient to satisfy the liens of such other persons. There is nothing in the opinion that indicates the view of the court in reference to the rights of Vehmeyer as against Hall & Co. under the receipt, had the claims of such other persons not intervened or had the assets been sufficient to satisfy the claims of all. Vehmeyer was merely denied all rights as a secured creditor. In the Snydacker case the instrument executed, while denominated a grain receipt, was, in effect, a chattel mortgage, and the court merely held that as there was no acknowledgment and recording and no change of possession the instrument was not valid as against third parties. It is manifest that neither of these cases warrants the conclusion that a receipt, such as that before us, does not affect the title to or the ownership of the property as between the person signing it and the holder thereof. So far as the title to the grain itself, or so far as the creation of any lien thereon, is concerned, as to third parties the receipt was, of course, absolutely without effect.
The vendor may sell a quantity of grain, part of a mass, the quantity so sold not being identified or separated from the mass and not being delivered, and the title thereto will pass as between the vendor and the vendee. (Cushing v. Breed, 14 Allen, 376; Kimberly v. Patchin, 19 N. Y. 330; Yenni v. McNamee, 45 id. 614; Young v. Niles, 20 Wis. 646; O’Dell v. Lyda, 40 Ohio St. 245; Merchants’ Bank v. Hibbard, 48 Mich. 118; National Exchange Bank v. Wilder, 34 Minn. 149; see, also, reasoning of opinion in Cloke v. Shafroth, 137 Ill. 393.) It is, of course, true, that where the property sold has not been identified or separated from the common mass replevin could not be maintained, but it is also true that if the whole was destroyed by fire without the fault of the owner of the building in which the grain was stored and while that sold was still unidentified and undelivered, the loss would fall upon the vendee to the extent of the grain sold to him. (Hoyt v. Fire Ins. Co. 26 Hun, 416.) It seems equally clear that if the owner of a building had therein 10,000 bushels of com in a common mass and should sell 1000 bushels to each of ten different persons without identifying or separating any of that sold, and make and assign to each vendee a receipt like unto that assigned by McReynolds to the bank, and that by proper endorsement and transfer all the receipts should come to the hands of the same party, this party could then 'maintain replevin for the corn if it still remained undisturbed in vendor’s building.
Had the transaction between McReynolds and the bank been intended as a sale, we think the title to the corn would have passed as between the vendor and the vendee, and that the receipt having been endorsed and delivered as collateral security, it was, in legal effect, an unrecorded and unacknowledged chattel mortgage, possession of the property remaining with the mortgagor, and that it was such an instrument as comes within sections 124 and 125, supra.
It is urged that there is a fatal variance between the allegations and proof, because, it is said, there were 3000 bushels of corn in the elevator which was of the description specified by the receipt, while the indictment charged that a large amount of the corn, “to-wit, all of the said 4670 bushels and forty pounds,” had been removed. The point is, that the proof would not support a conviction, in view of the phraseology of the indictment, unless it showed the removal of all the corn. By a fundamental rule of evidence the averment of the indictment made proof of the removal of all or any portion of the corn admissible. There was no variance.
Evidence was introduced which showed that on the 19th of January, 1906, there were 6000 bushels of corn in cars standing on railroad tracks in a yard which was a part of the elevator property and which was operated in conjunction with the elevator. It is insisted that the first instruction given at the request of the prosecution was erroneous, because it advised the jury, in substance, that the fact that McReynolds owned this corn in' the yard was without significance. We think the instruction was correct. McReynolds was required by the law to keep the corn in the “place of storage,” which was the building, and not the yard.
We have carefully considered other assignments urged by counsel which question the action of the court in passing on instructions to which the foregoing portion of this opinion does not apply and in permitting evidence to go to the jury over the objection of McReynolds. The indictment, by'proper averment, charges a violation of section 125, supra. Evidence was admitted to which no objection of any character was interposed and which was in nowise questioned or disputed, which, as we have above construed the statute, conclusively establishes the fact that McReynolds is guilty of the crime for which he was tried. The alleged errors pointed out by such other assignments, even if well assigned, would not, under these circumstances, warrant reversal. Under our construction of the statute they are harmless in any event, and for this reason it is unnecessary to lengthen this opinion by discussing them.
THe judgment of the criminal court will be affirmed.
Judgment affirmed.