Shingleur-Johnson & Co. v. Canton Cotton Warehouse Co.

Terral, J., delivered the opinion of the court.. The appellant sued the appellee in replevin for fifty-nine bales of cotton, and before suit brought demanded the delivery of the same, and offered to the warehouse company all storage and other charges thereon, amounting to $124.55, upon said cotton. The warehouse company refused the delivery of the cotton unless appellant would pay it the storage and other charges on seventy-nine bales of cotton previously delivered by appellee to appellant, amounting to $162.89. For some reason appellant declined to pay the charges on the previous bailments. It appeared from the evidence that a separate receipt was given for each bale of cotton, and there was no connection between the bailment of the fifty-nine bales of cotton sued for and the prior bailment of the seventy-nine bales of cotton, upon which $162.89 was claimed as charges. A judgment was rendered against appellant for the expenses on the seventy-nine bales of cotton, as well as that-on the fifty-nine bales sued for. In that respect, it is claimed that the court erred. 1. The contention of the appellee that a warehouse lien is a general lien and gives a right to retain for a balance of accounts relating to similar dealings is not to be maintained. It is a common law lien, which is the creature of policy, and is a specific or particular lien, which attaches only upon each separate bailment, and is lost when all the articles of each several bailment are delivered to the bailor or his assignee. Angell on Carriers, sec. 66, and notes; Scott v. Jester, 13 Ark. Rep., 446, s.c. 42 Am. Dec., 257; 27 Ill. App. Ct., 529. 2. The contention that a warehouseman, under § 2682, code 1892, has a lien on cotton raised in this state for storage and other charges connected therewith is not supported by any reasonable construction of that section. [879] The cotton here was not in the warehouse to prepare it for market, but was at the market, and was there for sale or shipment, and the charges claimed were incident to the handling of the cotton then in the market. It is not covered, we think, by § 2682. 3. On the delivery of each bale of cotton at the warehouse by the farmer bringing it in for sale, a receipt was given, of the following tenor: “ No. -. Received of---one bale of cotton, in apparent good order. Mark,-. — ■. No.,--. Weight,.-•. Remarks,--. ----, Manager. “Responsible for loss or damage by fire or water. This bale of cotton to be delivered only on this receipt properly indorsed. ’ ’ . It is not denied but that appellant had bought the fifty-nine bales of cotton from the owners and had received these unindorsed receipts ás a symbolical delivery of the bales of cotton; that, as between the bailor and the assignee, the property was intended to be passed to the assignee by the delivery of the unindorsed receipts. The intention of the parties gives effect to their acts as a valid transfer of the property. Allen v. Williams, 12 Pick., 297; Bank v. Dearborn, 115 Mass., 219; Bank v. Ross, 9 Mo. App., 399; Lickbarrow v. Mason, Smith’s Ldg. Cases (8th ed.), 1209. However, no objection was made in the court below to the receipts because not indorsed, and the objection comes too late when made here for the first time. The appellant, upon the case as made by the record, was entitled to recover the fifty-nine bales of cotton the charges on which had been tendered, with all costs. Beversed a/nd remanded.