McBee v. Ceasar

Lord, C. J. This is an action for the conversion of about 6,343 bushels of wheat alleged to have been deposited in the [65] warehouse of T. Blair, at Booneville, and subsequently, in the year 1885, shipped in the steamer McCully and delivered to the defendants. The action originated in this state of facts: During the years 1883 and 1884, the plaintiff and other persons who have assigned their claims to him, deposited their wheat in the said warehouse, taking what are known as “weighing checks,” for each load as delivered, and after the deposits for the season were complete, regular warehouse receipts for the whole amount of wheat deposited were given to them. The amount so deposited is the amount above alleged. None of said wheat deposited by the plaintiff and his assignors was ever drawn out by him or them, but about the 1st of February, 1885, all the wheat remaining in the warehouse was shipped to the defendant at Portland. Besides these parties, others were depositing wheat in said warehouse, which was mingled with the wheat deposited as stated in common bins. The defendants, after denying the allegations of the complaint, affirmatively set up that from time to time they received wheat from Blair, and advanced money to him, and that at the close of the transactions, Blair owed them $5,795.43, and that they had in their hands 6,639 bushels of Avheat, upon which they claimed a lien for said advances, and also for charges and expenses. The trial resulted in a verdict for the plaintiff, and judgment having been entered in accordance therewith, the defendants appeal. All the objections reserved and assigned as error are presented in the bill of exceptions. It is first objected that it was error to allow Blair to testify that the wheat in question was consigned to the defendants. The specification of error was that the only proper proof of this fact was a bill of lading. The evidence discloses that there was no evidence of any bill of lading, or other writing showing the consignment to the defendants. The material fact for the plaintiff to establish was that the defendants received the wheat. The plaintiff had nothing to do with any agreement which might have existed between Blair and the defendants, nor was he bound to produce the evidence which may have existed between them to fix their liability to-each,other. As between them, a bill of lading is not to be regarded as-a contract in writing, but merely as an admission on the part of the [66] consignor as to his purpose at the time of making the shipment, and such admission is subject to be rebutted. The fact that the wheat was deposited with Blair is not contradicted, and he testified that it was shipped to the defendants. This was evidence tending to prove the fact in issue, and was competent for that purpose, and if the defendants had any evidence to rebut it, they could have submitted it. We do not think there was any error in the ruling excepted to, nor to the succeeding assignment of error for a like reason. Mistake in the demand. It is next objected that there was a mistake in the written demand as to the name of the boat in which the wheat was carried. The demand was made by Mr. J. F. Watson, and the conversation which took place at that time shows that the defendants knew and understood what wheat was demanded. In a word, that there was no mistake as to the property involved in the action, and therefore the mistake alleged could not prejudice the defendants. * Bailment. The next assignment of error presents the question as to the effect of mingling wheat of several depositors in common bins of a public warehouse. It has been held by this court that .such a deposit is a bailment, and that the depositor does not lose his right to reclaim the wheat so deposited from the common mass. It was admitted by the counsel for the appellant that the later authorities were to this effect, and when his attention was called to a late decision of this court, which involved the determination of a like principle, he abandoned this exception. The record,'however, discloses that this assignment was the strong jioint on .which the appellant relied to reverse the judgment, and ..there.can be no doubt, if the position for which he contended . could have been sustained, it would have been fatal to the judgment which .the plaintiff obtained. But the necessity for abandoning it — the adverse decision referred to — renders some of <.the other assignments of error which are coupled with the theory .unimportant, and we shall, therefore, only notice such of the other .assignments as do .not include these, and which counsel deemed ■material in producing an incorrect result. Respondents not chargeable with notice of Blair’s customs. It [67] is contended that the court below erred in instructing the jury that “there is no evidence for the jury to consider that the plaintiff or any of his assignors ever authorized Blair to deliver any of the wheat described in the complaint to the defendants.” The transcript contains all the evidence; and that part of it which, it is claimed, tends to show such authority, is based on Blair’s testimony that he had been accustomed to ship away the wheat remaining in the warehouse at Booneville before low water came, which, taken in connection with the fact that during that time plaintiff and his assignors had been storing wheat with him, carries the inference that such depositors did not contemplate-that their wheat would lie in that warehouse all summer. In other words, it is claimed upon this state of facts that unless the plaintiff and his assignors withdrew their wheat deposited in that warehouse before low water came, they must have known it would be shipped, and consequently acquiesced in it, which was equivalent to such authorization. It is insisted, therefore, there was evidence on this point which the court erred in excluding from the consideration of the jury. The fact that the plaintiff and his assignors had been storing wheat with Blair in the Booneville warehouse, taken in connection with the fact that he had been in the habit of shipping wheat from this warehouse before low water came, does not warrant the inference that the plaintiff or his assignors knew it, much less acquiesced in or authorized its consignment and sale. There is no evidence to show that the plaintiff or his assignors knew that Blair was accustomed to ship wheat from this warehouse before low water came. The vice of the argument lies in assuming that the fact of storage of the wheat in that warehouse charges the plaintiff and the assignors with knowledge of the other fact, that it was the custom of Blair to ship the wheat from the warehouse before low water came. The two facts do not have such necessary connection with each other as to justify such inference, without the aid of further proof. Estoppel. Nor do we think there was any error committed in the instruction of the court upon the question of estoppel. It is only such knowledge of the acts of Blair as indicated an inten [68] tional acquiescence, and by such conduct led the defendants to believe that the shipment of the wheat was rightful; that, the court instructed the jury, operated as an estoppel. As a matter of law the instruction is correct, although the facts are extremely meager, if there are any upon which to predicate an instruction of estoppel. There was no error in the language in which it was given, and under the circumstances as disclosed by the record, it was favorable to the defendants. It was earnestly urged that the verdict in this case worked an injustice. If such was the fact, it arose out of matter which it was the province of the jury to decide, and not out of any error of law which it is the province of this court to correct. It is not the business of a court, “on a bill of exceptions, to judge of the quantum of the proof, or to correct the errors of the jury, and make a bad precedent because the case is a hard one.” (Gibson, C. J., Sidwell v. Evans, 1 Pen. & W. 385.) After a careful examination of the record we are constrained to affirm the judgment, and it is so ordered.