Northcutt v. Peoples Bonded Warehouse Co.

Stacy, C. J. The plaintiff first sued for the breach of an alleged private contract between himself and the Peoples Bonded Warehouse Company. A new trial was granted for error in the exclusion of certain evidence. Northcutt v. Warehouse Co., 202 N. C., 657, 163 S. E., 747. Thereafter, the plaintiff recast his complaint, declared upon a verbal agreement dehors the receipts, and now seeks to recover against the Warehouse Company as a part of the State Warehouse System and also against the “indemnifying or guarantee fund” in the hands of the State Treasurer accumulated under chap. 168, Public Laws, 1919. Bickett v. Tax Com., 177 N. C., 433, 99 S. E., 415. It will be observed that the action is not upon the official receipts, which carry “absolute title to the cotton” (sec. 12), but for failure to issue said receipts in the name of the plaintiff as agreed. It may be doubted whether official receipts could have been issued in the name of the plaintiff, with the cotton encumbered at the time. Sec. 12. But however this may be, it is clear from the provisions of the statute that the primary purpose of the indemnifying or guarantee fund accumulated in the hands of the State Treasurer is “to make the warehouse receipts universally acceptable as collateral” (sec. 5). Lacy v. Indemnity Co., 189 N. C., 24, 126 S. E., 316. Therefore, as the plaintiff is not the holder of the receipts and the action is not to recover thereon, it would seem that plaintiff’s, .claim against the fund in the hands of the State Treasurer is not well founded. The demurrer to the evidence, interposed by the State Treasurer, should have been allowed. *845 Nothing was said in Lacy v. Indemnity Co., 193 N. C., 179, 136 S. E., 359 (suit upon warehouseman’s bond for failure to deliver cotton upon tender of receipts), which militates against our present position. But the same reasoning does not apply to the demurrer of the corporate defendant. Even if the receipts were not issuable in the name of the plaintiff, because title to the cotton was encumbered at the time, it does not follow that plaintiff is without remedy as against the Warehouse Company. LeRoy v. Jacobosky, 136 N. C., 443, 48 S. E., 796; 21 R. C. L., 914. It is established by the verdict that the plaintiff lost his cotton through the failure of the defendant to store it and issue receipts therefor as agreed. We have discovered no error in the trial of the cause so far as the corporate defendant is concerned. The result, then, is that the judgment will be affirmed as to the Peoples Bonded Warehouse Company and reversed as to the State Treasurer. On appeal of State Treasurer, Reversed. On appeal of Warehouse Company, No error. ScheNCK, J., took no part in the consideration or decision of this case.