Walker v. Stetson.

This instruction was refused, and in respect to it the court charged, "that a presentment for acceptance to the drawee personally, or at 115 Chambers street, was not necessary; but that a presentment at the bank where said bills were payable, at the proper time, for payment, would be a sufficient presentment of the bills."

Numerous other charges were asked, some of which, with or without qualifications, were given to the jury, and others refused; but as their materiality, as respects the case made in the record, depends upon the assumed error of the court in its charge and refusal to charge as above stated, it is not necessary to set them out.

A verdict having been rendered for the plaintiff below, the refusal of the court to grant a new trial, on the ground that the verdict is not sustained by sufficient evidence, is likewise assigned for error; and the present petition in error is filed by Walker, the defendant below, to obtain the reversal of the judgment rendered on the verdict.

Prentiss & Baldwin, for plaintiff in error.

S. O. Griswold, for defendant in error.

WHITE, J. The material question in the case is, whether, in the absence of an acceptance, the presentation of the bills at the Ocean Bank for payment was a sufficient presentment of the bills to charge the drawer and the indorser.

In our opinion it was. The theory of a bill of exchange is, that it is drawn on funds to be provided by the drawer. From this it would seem to follow, that, where the drawer in the bill appoints a time and place of payment, it is his duty to see that funds are provided at the appointed time and place to pay it. And, if this is so, the duty of the holder in respect to demanding payment would seem to be performed by a presentment in due time, at the designated place.

It is not denied that this would be true in the case of an accepted bill; but it is contended that the holder is bound to make presentment to the drawee for acceptance, and that his failure to do so discharges the antecedent parties.

We do not so understand the law. It is true that, where a bill is made payable within a specified time after sight, it is necessary, in order to fix the period when it is to be paid, to present it to the

Walker v. Stetson.

drawee for acceptance, otherwise the time of payment would never arrive; but when it is payable at a specified date, or at a certain period after date, no presentment for acceptance is necessary. Byles on Bills, side pp. 139, 168; Story on Bills, § 228; Bank of Washington v. Triplett, 1 Pet. S. C. 25; Townsley v. Sumrall, 2 id. 170.

And in O'Keefe v. Dunn, 6 Taunt. 308, DALLAS, J., in speaking of the nature of the contract arising from the drawing of a bili payable at a future specified date, says: "He [the drawer] does not stipulate for himself that it shall be presented for acceptance, nor does the law impose such an obligation on the payee. The drawer, therefore, must be considered as contented to rest in ignorance whether it has been accepted or not till the bill becomes due. And whether presented or not depends upon the casualty of how the holder of the bill may choose to proceed."

The strong probability from the evidence is, that the non-payment of the bills resulted from the fact that the drawee was not advised of the drawing of the bills. He states that he was in funds, and would have paid them had he been so advised.

The question is, whose duty was it to have given him this advice? It seems to us it was the duty of the drawer, for whom th drawee was expected to act in making the payment.

The words "No. 115 Chambers street," added to the name of the drawee, we regard as descriptio persona. They imposed no additional obligation on the holder in respect to requiring presentment of the bills for acceptance, from what would have existed had the words been omitted. They were merely intended to direct the holder, if he desired to have the bills accepted, where to seek the drawee.

As to the assignment of error that the verdict is not supported by sufficient evidence, it is enough to say, we find no grounds which would justify a reversal of the judgment.

Judgment up med.

Second National Bank v. Walbridge.

SECOND NATIONAL BANK, plaintiff in error, v. Walbridge.

(19 Ohio St. 419.)

Warehouse receipt -position of assignee of.

A warehouseman, on application by the owner, issued by mistake, and at different dates, two warehouse receipts for the same goods, the first of which the owner assigned, for value, to F., and the other to the plaintiff. After ward the warehouseman delivered the goods to the plaintiff on the second receipt. Whereupon, F. recovered the goods of plaintiff by replevin. On suit by plaintiff to recover of the warehouseman the value of the goods, held, that a warehouse receipt was not, technically, a negotiable instrument; that the assignee thereof occupied no better position than the assignor, and that, therefore, the plaintiff could not recover.

THE defendant was a warehouseman, and had received in store, at different times, for Lewis & Son, manufacturers of oil, fiftyseven barrels of oil, for forty-two barrels of which they had given a warehouse receipt in the usual form. This receipt was transferred by Lewis & Son to the First National Bank of Toledo. Subsequently the defendant issued to Lewis & Son a warehouse receipt for the fifty-seven barrels of oil, forty-two barrels of which were covered by the former receipt. This second receipt Lewis & Son indorsed, and assigned, in the usual course of business, to the plaintiffs, the Second National Bank, to secure prior indebtedness as well as further loans, and received on the credit thereof from plaintiff a loan of $620.94.

At the time the second receipt was given, neither the defendant, nor Lewis & Son, nor the plaintiff, had any actual knowledge of the existence of the first receipt, that having been obtained and transferred by a former clerk of Lewis & Son without the knowledge of the firm, and was not entered in the firm books. It was issued by a clerk of defendant, who was absent from the office when the second receipt was given.

Shortly after the assignment of the second receipt to the plaintiff. the latter presented it to defendant and demanded the oil, which was at once delivered. Thereupon the First National Bank commenced suit, and, by replevin, took the forty-two barrels oi oil from plaintiff's possession, and on the trial the title of that bank was sustained against the Second National Bank.

Second National Bank v. Walbridge.

This suit was brought to recover of the defendant the value of oil so taken. Judgment was given for defendant, to reverse which this petition in error was filed.

W. Baker, for plaintiff in error.

M. R. & R. Waite, for defendant in error.

WHITE, J. If Lewis & Son had retained the receipt, it is clear that they, upon the facts, could have maintained no action against the defendants.

In Burton et al. v. Wilkinson et al., 18 Vt. 186, it was held, "if a warehouseman receive goods, and the bailor had no title to the goods, and they are taken from the custody of the warehouseman by the authority of the law, as the property of a third person, the warehouseman may show this in defense of an action brought against him by the bailor of the goods."

The only question for our determination is, whether the plaintiff, as the assignee of the receipt, occupied a better position than Lewis & Son would have occupied had they retained the receipt.

A receipt given by a warehouseman for property placed in his possession for storage is not, in a technical sense, like a bill of exchange, a negotiable instrument, but it merely stands in the place of the property it represents, and a deliverance of the receipt has the same effect in transferring the title to the property as the delivery of the property. Burton v. Curyea, 40 Ill. 320.

The question has frequently been brought under consideration in regard to bills of lading.

Thus in Thompson v. Dominy, 14 Mees. & Wels. 403, it was held that a bill of lading is not negotiable like a bill of exchange, so as to enable the indorsee to maintain an action upon it in his own name; the effect of the indorsement being only to transfer the right of property in the goods, but not the contract itself.

PARK, B., in delivering the opinion in that case, said: "I never heard it argued that a contract was transferable, except by the law merchant; and there is nothing to show that a bill of lading is transferable under any custom of merchants. It transfers no more than the property in the goods; it does not transfer the contract."

And ALDERSON, B., in his concurring opinion, added, that the word "negotiable," as applied to a bill of lading, "was not used in VOL. II.-52

Second National Bank v. Walbridge.

the sense in which it is used as applicable to a bill of exchange, but as passing the property in the goods only."

To the same effect is Gurney v. Behrend, 25 E. L. and E. 136 (S. C.), 3 Ellis & Bl. 622; Howard v. Shepherd, 9 Man., Grang. & S. 298 (S. C.), 67 E. C. L. 297; and Blanchard v. Page, 8 Gray, 296.

Nor is there any force in the claim made in argument, that the receipt in this case was negotiable because, by its terms, the property was declared to be subject to the "order" of the bailor. In this class of instruments the property is usually made deliverable to "order" or "assigns;" and such was the fact in all of the cases above cited.

This case is clearly distinguishable from the cases urged upon our attention, where negotiable paper, invalid between the original parties, has been enforced in favor of a bona fide holder for value; also, from the cases where the representation of the defendant has been made directly to the plaintiff, with the view of influencing his conduct.

In the former class of cases, the negotiable character of the paper affords the holder protection; in the latter class, when the other necessary elements are found, there exists good ground for the application of the doctrine of estoppel.

The issuing of the receipt in this case involved no element of bad faith, but was simply a mistake of the defendant, which he was influenced to commit by the application of Lewis, whose conduct distinctly implied that no receipt had before been given for the fortytwo barrels.

In Caldwell v. Ball, 1 D. & E. 205, it was held, that where several bills of lading have been signed, no reference is to be had to the time when they were signed by the captain; but the person who first gets one of them by legal title from the owner or shipper has a right to the consignment. Also, that when such bills, though different upon the face of them, are constructively the same, and the captain has acted bona fide, a delivery according to such legal title will discharge him from them all.

'The action was trover, brought by the assignee against the captain for the goods embraced in the bill of lading first issued.

It was contended for the plaintiff that the contradictory claims of the assignees of the different bills of lading resulted from the defendant's own wrong, and could not have happened without, and that he was therefore liable to the plaintiff.