Driggs v. Dean

Van Brunt, P. J.: The plaintiff in' this action sues to recover for the storage of a large number of barrels of cement. The answer was a general denial, and upon the trial the case was submitted to the jury and the jury rendered a verdict in favor of the defendants, and the court thereupon, on the plaintiff’s motion, directed a new trial. There is no dispute as ■ to the facts, and the only question is whether, upon the facts, any liability of the defendants for this storage was established. In March, 1885, the plaintiff was a public warehouseman doing business in the city of Few York. On the twenty-eighth of said month one Von Angern, the owner of a large number of barrels of cement, placed the same in plaintiff’s warehouse upon storage, agreeing to pay at the rate of four cents a barrel per month, and taking two warehouse receipts therefor. On these receipts were indorsed conditions upon which the goods were held on storage, in accordance with the provisions of chapter 326 of the Laws of 1858, that the receipts might be transferred by indorsement thereof, and that the person to whom they were so transferred should be deemed and [126] taken to be the owner of the goods therein specified, so far as to give validity to any pledge or transfer made or created. In July, 1885, Yon Angern made his promissory note for $3,500, payable to the Chemical Rational Bank three months after date, and pledged to said bank, as security for the payment of said note, the said two warehouse receipts. Upon this note the defendants indorsed their guaranty of payment upon transfer to them of said note and of the right and title of said bank in and to the collateral securities specified or referred to therein, if requested at the time of such payment. Yon Angern failed' to pay the note at maturity, and the bank called upon the defendants to pay it, which they did, .and the bank transferred and delivered to them the note and the warehouse receipts with the- indorsement thereon. Subsequently, .and in October, 1885, the said warehouse receipts Were presented to the plaintiff by one of the defendants named Wills, he at the time making the remark, “ Well, I suppose we are stuck,” and stating that he wished')to examine the goods, which he did. At this time the plaintiff’s bookkeeper asked the defendant Wills whether he should-make out bills for the accrued storage, to which Wills replied: Yes, you had better.” The bills were accordingly made out and given to Wills by the plaintiff’s bookkeeper, Wills swearing that they were made out to Yon Angern. Subsequently to this time the defendants offered to sell the goods, and the plaintiff, Under their .authority, allowed the same to be examined. On the 16th day of January, 1886, the defendants sued the plaintiff Upon the allegation that the iperchandise represented, by the warehouse receipts issued by him to Yon Angern, of which they had become the owners by reason of the transaction above stated, were not barrels of cement, as described in said warehouse receipts, and were not of materials that could be used as cement; and further alleging, on information and belief, that Driggs had so-carelessly and negligently cared for and stored the merchandise covered by said receipts as to cause the same to be worthless and without intrinsic value; and that the deféndants, by reason .of such carelessness, had suffered damage to the amount of $3,500, with interest. The plaintiff in this suit-—■ the defendant in the action last above mentioned — answered, and, after various vicissitudes,, it was finally determined that the defendants in this action had no cause of action against- the plaintiff by [127] reason of the matters set forth in their said complaint. The mer•chandise covered by the receipts having remained on storage during all this time, and storage having accumulated thereon, this action was brought against the defendants, as owners, to recover the amount •of such storage. Upon the first trial of the action the complaint was dismissed at the close of the plaintiff’s case. This was reversed by the General Term, and upon the retrial the jury rendered a verdict in favor of the defendants, which was set aside hy the trial judge upon motion, and from the order thereupon entered this appeal is taken. It was claimed upon the argument of this case that there were some misapprehensions of fact by the General Term, and that differences exist between the case as now presented and as it was presented to the General Term. We do not see, upon an examination of the evidence, that there was any mistake of misapprehension upon the part of the General Term in regard to the facts of the case. The evidence discloses that the defendants were insisting upon their rights as the owners of this merchandise. They knew that it had been stored, and I think we may take judicial notice of "the fact that the storage business is not conducted for pleasure, but for profit. It appeared upon their muniments of title that a certain rate of storage was to be paid upon these goods; and they knew "that the warehouseman would be entitled to look to somebody for "the payment of these storage charges. The defendants held the receipts, claimed to be the owners of the goods, demanded damages -against the plaintiff upon the ground that they were the owners of "the goods, and that the plaintiff was bound to hold the goods subject to the presentation of the warehouse receipts of which the defendants were the owners. It appeared upon the face of these receipts what the storage would be ; and if the defendants succeeded to the rights -of Yon Angern as owner of the goods, it is difficult to see why they did not also succeed to his obligations to pay the storage called ■for by these receipts, from the time they became the owners thereof. It is a familiar principle • in respect to landlords and tenants that where a lease is assigned the assignee is liable to' the landlord for the rent prescribed in the lease as long as he remains ‘the assignee .and holder of the lease. He may terminate that obligation by assigning the lease, even to an insolvent person. (Smith on Landlord [128] & Tenant, 294.) So in the ease at bar the defendants became the owners of these warehouse receipts, upon the face' of which was a promise to pay storage at a certain rate; and as long as thqy held these receipts and claimed the ownership thereof and of the merchandise therein represented, I am unable to see why they were not under an obligation to pay the storage incurred under the contract entered into by their assignor. These goods were being held by the plaintiff for the benefit of the defendants; and if there was no express contract, he keeping them on storage virtually at the defendants’ request, because they held the warehouse receipts and had a right to demand the possession of the goods, an implied contract to pay the storage would, under such circumstances, necessarily arise. It was not disputed that the rate of storage charged was reasonable; and it would seem, therefore, certainly for the time during which these goods were stored and the defendants were the owners of the same,' that the plaintiff would have the right to look to them for compensation for the service which he was rendering to them., The order appealed from should be affirmed, with costs. Williams and O’Brien, JJ., concurred ; Ingraham, J., dissented.