Bucher v. Commonwealth

Mr. Justice G-okdost delivered the opinion of the court, No exception can be taken to the charge of the learned judge of the court below as a critical exposition of the Act of September 24th, 1866 (P. L. 1866, 1363.) We have no doubt that he was strictly correct in saying that the whole object of the Act was to protect the transferee of what is technically known as warehouse receipts. This kind of paper, together with bills of lading and receipts for goods in transit, are, by this Act, made negotiable, hence for the protection of those persons to whom these kinds of securities are passed, it is made a penal offence for any “ warehouseman, wharfinger, or other person ” to issue any such vouchers for goods, wares, &c., unless he shall have actually received them into store. Neither is such person or persons permitted to sell or incumber, “ ship or transfer, or in any manner remove beyond his control, any goods, wares, merchandise, petroleum, grain, flour, or other produce or commodity, for which a receipt shall have been given by him as aforesaid, whether received for storage, shipping, grinding, manufacturing or other purposes, without the return of such receipt.” Nor is the learned judge loss correct in his definition of the intent of the Act when he states, that since the object of the statute is to protect advances made on the faith of the fact that the goods described in the receipt are actually in store, as may be stated in that paper, and not for the protection of the depositor, it follows, that the consent of the person storing the goods to the shipping of them without a return of the receipt does not relieve the warehouseman. lie further well says, that the depositor has no right to consent to a violation of the statute which was not made for his benefit, but for the security of the holder or transferee of the warehouse receipt; that the agreement of the bailor and bailee cannot so modify the Act as to make lawful the shipping of the property whilst such receipt is outstanding. But conceding this to be a true exposition of the law, as it undoubtedly is, nevertheless it is clearly apparent that the law is dealing with that class of securities which it has made negotiable, and with none others. Moreover, as these vouchers, in the nature of things, must be like many others which are not negotiable, their character must depend altogether upon the business of the person who issues them. That person must be [534] a warehouseman, or one who is engaged in a like business, for it will not do to say that the receipt of a farmer who takes a horse to depasture, or a mechanic who takes a wagon to mend, is liegotiable paper under the Act of 1866, and that the farmer could not return the horse, or the mechanic the wagon, without first lifting that receipt. . Penal statutes must be construed strictly, and should not be extended beyond the evident intention of the legislature as expressed upon their face. We must have regard to whom and to what the Act is intended to refer, and to nothing else. It expressly indicates “warehousemen, wharfingers and other persons,” and by “other persons,” we must of course understand those who are engaged in a like business, or who may connect the business of warehouseman or wharfinger with some other pursuit, such as shipping, grinding or manufacturing. So the goods stored or deposited must be so stored or deposited, with the intention that they shall be returned without change or substitution, or in a manufactured state, to the owner or his transferee. Such being the ease, the depositee is strictly a bailee, hence the defendant’s third point should have been affirmed. Unless the com was received as a bailment, that is, with the understanding that the property was to remain in Hettriek, and to be returned to him when demanded, the jury ought not to have been allowed to convict the defendant. Thus, in the application of the law and facts to the case in hand, we are brought to the question, first, what was Bucher’s business ? Was he a warehouseman? Prima facie, we would say, no. A warehouseman is one who receives and stores goods as' a business for a compensation or profit. But Bucher made no charges, neither was he a shipper, miller or manufacturer. If then he did not receive this grain, merely for the purpose of storage, the second question is, for what purpose did he receive it ? The answer from the evidence is, either for his own use as an immediate purchaser, or for future sale on account of the depositor, and certainly not for the purpose of holding it in specie until called for by the bailor or his transferee. As conclusive evidence of this we need go no farther than the testimony of Hettriek himself. He says he never paid anything for storage, that he did not receive the receipt for the purpose of negotiation, and that he never intended to remove the corn unless he could not sell it to Bucher. If this means anything, it means that Bucher had the option to purchase, and if lie used the corn he must be regarded as having exercised that option, and therefore be treated as a purchaser. Moreover, this kind of dealing had been going on for years, and certainly Hettriek, and everybody else in that neighborhood, knew the character of Bucher’s business, .hence the offer [535] of evidence on part of the defendant, as contained in the eighth assignment of error, ought to have been admitted. The court was not trying an action on a contract, but a criminal charge, under which the character of the business was of prime importance as giving character to the receipt issued by the defendant. In the court below much stress was laid on the form of this paper, though that particular liad, in and of itself, but little significance. The Act of Assembly prescribes no form. If the receipt is that of a warehouseman, it is negotiable without regard to its form, and to destroy that negotiability notice to that effect must appear upon its face. On the other hand, unless it is in fact or effect a warehouse receipt, no form will make it such. The Act was designed to meet a special business —a business that enters largely into the commerce of the country,$, and it was not designed to affect commission merchants or any others who by contract, express or implied, have the right to-sell or use the goods committed to their care. A receipt for such goods forms but part of the contract from which it originates, and from its very nature cannot become negotiable. Nor can we regard the case in hand as otherwise than - remarkable in this, that Bucher and his customers should have gone on with this kind of dealing for a period of eight or nine years, they delivering grain to him, he disposing qf it on his own, contracts, and settling with them from time to time at the market price, and that only after his failure it should he discovered that he was in fact a warehouseman and had no right thus to deal with the produce committed to his care. We must confess that we cannot comprehend this manner of treating a subject of so much gravity, and that to ns it looks very much like an after-thought which has unwittingly been made effective in the court below, for the punishment of an insolvent debtor through a perversion of the Act of 1866. Judgment reversed, and it is ordered that the record he remanded to the court below for further proceedings.