Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-03-13

II w. lNCflekk O. 20, 3dppettuHs, Us. 1TetteTEh1 ".
Is Zuchen and Paul G.. Biersdch and Abran,
Parker, Ross II. Holmes and Joseph Colt,
partners as Parker, Holmes d Co., Respond.
eBts.
SYLLABUS.
To constitute pledge the Pledge must take
possession, and to preserve it must retain pos
session Of the pledged property. If after hav-
ing taken possession he relinquishes it, the
pledge is extinguished. The transfer of pos
quire manual delivery of the pledged prop
erty by the Pledge, or manual receipt Of it
by the Pledge. No formal delivery is re-
quired. It is enough if the property being
present, it is committed by the pledger to the
exclusive control and charge Of the Pledge.
The evidence in the case considered and held
to have reasonable tendency to show that GER
tain cigars were delivered into the possession
of an agent Of certain alleged pledges and
that such agent retained possession of the same
until they were taken from him by tho plain
tiff.
A pledge Of unstamped cigars does not fall
within the provisions of sections 3367-3406,
Revised Statutes of the United States, which
require cigars many actsyed and sold or 7eaoced
for consumption and use to be stamped. It
seems also that sale Of unstamped cigars will
not be valid if as part of the transaction it
was contemplated that they should be stamped
before removal.
OPINION.
The general rule is well settled that to con-
stitute pledge the PLEDGE must take possess
sion, and to preserve it must retain posssion of
ha V1lc rorO fok
possession, he ,e1ifquishes it, the pledge is ex-
tinguished.
Kimball VS.. Hildreth, Allen, 167. The
court by which this action was tried below
finds that Mann, as agent of the pledgers, took
possession of the cigars (the pledged property,
and that he always retained such possession
until, against his protest, the property was
taken from his possession by the plaintiff.
The plaintiff contends that as respects the TAX.
ing and retention of possession, the findings
are not sustained by the evidence.
There is evidence in the case tending to es-
tablish the following state of facts: Tuchelt &
Biersach were partners carrying on the business
Of manufacturing cigars, and of selling cigars,
tobacco, DC, under the name of F. W. Tn-
chelt & Co. The store occupied by them in
their business was divided into two rooms by a
glass partition. The front room was used as
salesroom, &C., and the rear room exclusively
as cigar factory, including the keeping there
in of unstamped cigars.
Tuchelt & Co., were indebted to Parker,
Holmes d Co., Detroit house, and being una
BILE to pay their indebtednesss when it be-
came due it was agreed between them and one
Mendelbauer {as agent of Parker, Holmes &
Coz that Tuchelt & Co. should have an extern
sion of time for the payment of such indebt-
edness, and that they should pledge their un-
stamped cigars as security for the same. Con-
formally to this agreement, Tuchelt & Co.
forthwith executed and delivered to Mendel-
emit al thQir
notes for the amount Of their debt, made a
schedule of their unstamped, CIGARS being
all the cigars which they then had in their
factory, and which were then separate, and
were ever afterwards kept separate from their
Mann Zone of their Clerks, who, at the request
| and in the presence of both parties, took pos
| session and control Of them, and signed receipt,
| to which the schedule was attached, both par
| ties agreeing that he should hold the cigars for
the purposes and upon the terms and conditions
named therein. Thereupon the agreed extern
sion was given. The receipt was as follows, viz:
ST. PAUL, Mimi, Dec. 10th, 1875.
Received of D. w. Tuchelt & Co. $4,000
cigars, valued at $l,654.90 to be held as col
lateral security for an account of Parker Holmes
Il Co., Detroit, in payment Of seven notes,
$257.40, each, dated Nov. 20, 1875, at st. Paul,
Minn.,. payable OF intervals of Is days
each from a above date, the last being
/
18th, 1875. After the note due Jan. /,
1876, is paid am at liberty to reinquish cigars
to F. w. Tuchelt & Co. as fast as they pay me
cash to apply on notes due Parker Holmes &
Co. The price to be paid is as per schedule
prices attached to this receipt
(Signed,) CHAs D. MANN.
AT the foot Of the schedule are these words:
1.-THE above cigars are in my possession" fol
lowed by Mann's signature, placed there BY
him, in the presence Of both parties at the
same time when he signed the receipt. This is
certainly evidence tending to show, and in our
opinion condusively showing that the cigars
| mentioned in the schedule were delivered into
| the possession Of Mann for, and as agent of
Parker, Holmes & Co., the pledgees. The
| transfer of possession necessary to "a valid
pledge does not require manual delivery of the
pledged property by the pledgor. or. d manuel
receipt OF it by theIpledgee:. Noformal delivery
ing present, it is committed by the piedgor to
the exclusive control and charge Of the
Pledge.
The next inquiry is, is there any evidence
reasonably tending to show that Mann retained
possession of the cigars for, and as the agent of
Parker, Holmes & Co., until they were taken
from him BY the plaintiff. AS to the subject
of this inquiry, the case discloses evidence as
follows: That the cigars remained in the rear
room Of the store occupied by Tuchelt & Co.,
that they received them with the
consent of Tuchelt & Co., that
being unstamped they: could not, under
the federal revenue law, be lawfully removed.
That at the time when Mann took possession Of
them they were separate from the other stock
of Tuchelt & Co., and were always kept
separate from it; that after December
is, 1876, when the cigars were put into Mann s
possession, Tuchelt Il Co. never interfered with
or took or sold any Of the cigars save as Mann
delivered them to them after they had paid
them their note due January 1, 1876, and had
paid Parker, Holmes Go. more than enough
on the other notes to equalin amount the value
of cigars delivered at the rates and on the
terms named IN the receipt and schedules;
that after taking possession Of the cigars Mann
went into the factory and counted them; that
\ when Tuchelt & Co. received orders for cigars
and had the money with which to pay fol
them, Mann was in the habit of stamping CT
4 gars sufficient to fill orders and charging
them to Tuchelt & Co., drawing the money fol
them and delivering them to Tuchelt q Co.;
that they never took any without first speak
ing to him about it; that he twice refused te
let them have cigars when they had not the
money with which. to pay fol
4 them; that several Thousand
were sold by Tuchelt d Co. in the manner
mentioned, and the entire price Gas per The
were manufactured by Tuchelt & Co. in the fac
tory after Mann took possession: that at tht
time when plaintiff was appointed receiver Of
the property of Tnchelt 81 Co., and before hi
had taken possession under his receivership
Mann made q careful inventory of the cigars re
naming unsold; that ct the time when tht
plaintiff took possession Of the unsold cigars
Mann notified him that he held them a. collat
eral security for the debt due Parker Holmes
4 q Co., and forbade him to sell them. showing
him copy of the schedule and receipts; tina
after the plaintiff had taken pessessioniO of then