Burnham v. Cape Vincent Seed Co.

Bartlett, J. This is an appeal from a judgment affirming a judgment in favor of plaintiff on the verdict of a jury at Jefferson County circuit, and from an order denying a new trial. The plaintiff was a warehouseman residing at Cape Vincent in this state. On the 2d of October, 1890, one Cole, a seed dealer at Kingston, Ontario, shipped from that port to Cape Vincent, by steamer “ Khartoum,” a cargo of peas consigned to the Ontario Bank of Kingston, care of plaintiff. On the 3rd of October, 1890, said cargo arrived in Cape Vincent and was deposited in plaintiff’s elevator, and a warehouse receipt was issued and delivered to Cole stating that the peas were held subject to the order of the Ontario Bank of Kingston. Cole thereupon drew a ninety days’ draft against this consignment on defendant, which was duly accepted Oct. 13, 1890, the defendant to have possession of said cargo on payment of the draft, the warehouse receipt to be held as security meanwhile. Cole then attached the warehouse receipt to the draft and procured discount by the Ontario Bank. The defendant failing to pay the draft when due, the Ontario Bank demanded of plaintiff the cargo of peas held by him as security for its payment. The plaintiff claimed that the defendant, after accepting the draft, had, without authority, taken possession of the cargo of peas; he, therefore, paid the draft, and thereupon it was duly transferred to him by the Ontario Bank, together with the warehouse receipt. The plaintiff then brought this action, setting up in his complaint three causes of action, viz.: first, on the draft so paid; second, for value of certain peas received by defendant and never accounted for, but no part of cargo in question; third, for storage of the cargo of peas involved in the first cause of action. The main contest was over the first cause of action. The defendant denied that it had received any portion of the cargo of peas stored as security for the payment of the draft; *172 also alleged that plaintiff had parted with the custody of said cargo in violation of section 633 of the Penal Code which forbids warehousemen to deliver to another property covered by a receipt, and for that reason could not maintain this action. The question of fact as to whether the defendant had taken from the custody of the plaintiff, without his permission, and before the maturity of the draft, the cargo of peas held as security for its payment, was properly submitted to the jury, and their verdict in favor of plaintiff is conclusive. The defense based on plaintiff’s alleged violation of section 633 of the Penal Code has no foundation in fact or in law. The section referred to is designed to protect the tona fide holders of negotiable warehouse receipts by inflicting a severe penalty on warehousemen who wrongfully deliver to third • parties property covered by the receipts. In the case at bar the plaintiff held the cargo of peas as security for the Ontario Bank, and if, before the bank’s debt was paid, he had wrongfully delivered it to the defendant, he would have been tj criminally liable under section 633 of the Penal Code, and the bank could have jwoceeded against him in a civil action for damages. (Colgate v. The Pennsylvania Co., 102 N. Y. 120 ; First National Bank of Cincinnati v. Kelly, 57 id. 34.) The facts in this case show that the section quoted has no application. The plaintiff before this action was commenced had paid the claim, of the Ontario Bank and was subrogated to all its rights as against the defendant; his cause of action w*as on the draft although inartificially pleaded ; the defendant, by the verdict of the jury, is found to have received the cargo of peas which was covered by the warehouse receipt held by the bank, and there is no reason, in morals or in law, why it should not pay the draft accepted in payment for property it has reduced to possession. As to the second and third causes of action it is unnecessary to discuss them in detail; it is sufficient to say that the verdict of the jury is warranted by the evidence. The judgment must, therefore, be affirmed unless the exceptions in the case disclose errors of law calling for reversal. *173 The defendant’s counsel took a large number of exceptions to the charge of the trial judge and to his refusals to charge as requested, but they are disposed of by the view we take of this case on the merits. There were numerous exceptions taken during the trial, all of which have been examined. We are of opinion that none of them requires special comment unless it be the exception to receiving in evidence a certain telegram sent by defendant’s vice-president, J. H. Howard, to Cole, the consignor of the cargo of peas in question. The objection was made that this telegram was not sufficiently proved to entitle it to be read. Assuming the telegram to have been improperly received, it worked no prejudice to the defendant, as its counsel had previously introduced in evidence a letter from Howard to Cole dated the day after the telegram and referring to it, and repeating an offer therein contained of partial payment on the amount due Cole from the defendant for said cargo of peas. The judgment and order appealed from are affirmed, with costs. All concur, except O’Brien, J., not voting. Judgment accordingly.