Porter v. Shotwell

ELLISON, J. This action was brought and an ' attachment in aid was sued out and levied upon a lot of buckwheat as the property of defendant. Inter-pleader claimed the grain and filed his interplea therefor. He prevailed in the trial court. . It appears that defendant was a miller and that he had a warehouse or storage building situated three or [180] four blocks from bis mill. He leased this to the “Merchants & Manufacturers’ Warehousing Company of New York, Incorporated.” That before the attachment was issued he had the grain in controversy deposited in the warehouse and took from the warehouse company a receipt therefor. He borrowed money of interpleader and assigned to him as security the receipt for the grain, of which the evidence shows the 'warehouse had notice. The warehouse company had its sign on the building and on bins inside. There was evidence tending to show that defendant was to go to the warehouse at necessary times and stir the grain and keep it in good condition; that he had a key to the building and that he kept some of his property there, a part of which he would get from time to time. There was evidence, too, which might be stated generally tended to show that defendant had access to the warehouse at all times. So, there was evidence that on more than one occasion defendant paid a portion of his indebtedness to interpleader and the latter would let him have a proportionate part of the grain by directing the warehouse company to that effect, which would be endorsed on the receipt which interpleader held. The, instructions for interpleader submitted that if these acts of defendant were in good faith, while they should be considered by the jury, yet alone they did not, of themselves, render the storage of the grain and the transfer to interpleader fraudulent. Other instructions affirmed the legal validity of a change of possession of the property by a transfer of the receipt to inter-pleader. Much has been said by plaintiff to show that the receipt held by interpleader was not what is technically known as a warehouse receipt; and that its transfer to interpleader did not, and could not, transfer possession of the property. [181] It can make no difference in the result which must he reached in this case whether the institution styled! “Merchants and Manufacturers’ Warehousing Company of New York,” was what would properly he designated a warehouseman. It was in possession of the-grain and was at least a bailee. Now, when property is. not in the possession of the vendor, but is actually in the possession of a third party as bailee, an order for the property on its sale, or on its being mortgaged, or pledged, and notice to the bailee, is all that is necessary to transfer the possession as against creditors of the vendor. How v. Taylor, 52 Mo. 592; Halderman v. Stillington, 63 Mo. App. 212; Worley v. Watson, 22 Mo. App. 546. If the vendor, as in several of the cases cited by plaintiff, is in possession, or retakes possession, or the transaction, in point of fact, is a sham or pretense, an essential element to a valid transfer would be lacking. Defendant’s refused instructions were properly rejected by the trial court. The first recites certain named acts of defendant in regard to his access to the building and his opportunities to remove its contents, and states that such acts could be taken into consideration in determining who was in possession. Substantially, the same things had been included in interpleader’s instruction number two, and the refusal was therefore harmless. But in addition to that, the instructions, as asked, left wholly out of consideration whether the interpleader knew of defendant’s supposed conduct, or assented thereto. The second instruction refused, submits the hypothesis of a mere pretense of possession as between the warehouse company and defendant, but in no way makes it necessary to find that interpleader was a party to the sham, or had knowledge of it. We have not discovered anything to authorize a reversal and the judgment will be affirmed. All concur.