Daily globe., 1878-12-17

sales and Ba1lments in Respect CT Grain in
Warehouses and Observation-Disclosures
ity of ParO1 Evidence Showing tho Nature
of the Transaction---Scope of the Law
Regulating the Storage of Grain---Opera-
tion of the Statutory Limitations In Mort
gage Foreclosures.
Yesterday, Judge Dillon filed the follow
ing important opinion and decision in the
case of Cornelius McCabe VS.. Paul McKin-
strY. The opinion is of great moment in
fixing the rights of parties in the matter of
storing and receiving wheat for storage in
elevators or warehouse. Being as it is, a
matter OF Importance to the great grain in
terests of the State, it will repay all business
men and farmers alike to read it carefully:
United States Circuit Court.
District of Minnesota, December Term, 1878.
Cornelius McCabe, assignee in bankruptcy, vs..
Paul Mchinstry.
L. Crlterla of sales and baiiments in respect
of grain in warehouses and elevators stated.
q Parol evidence of the manner in which
and the purpose Tor which the grain was re-
ceived and the use made of it, is admissible in
connection with the receipt of the warehouse
man to determine whether between the i'm
mediate parties the transaction was sale or
bailment
8. The act Of the legislature of Ninnesot. of
March 3, 1876, 'sto regulate the storage of
grain, construed in connection with Rahilly 8
case, 8 Dillon 42O.
Before Dillon, Circuit Judge.]
Warehouse grain receipts. Sale. Bailment.
Evidence.
Writ of error to the district court. The
plaintiff is the assignee in bankruptcy of the
Winnebago City Mill company. The action was
brought to recover S57665 alleged to have beer
received by the defendant of the bankrupt
April 2O, 1876 as fraudulent preference un
der the bankrupt act. On May l. 1876, the
mill company filed it's voluntary petition il
bankruptcy, and on the next day was adjudgec
to be bankrupt. On March 20 1876, the de
fendant authorized Cussens, the secretary o
the mill company to purchase certain whea
for him, which was done, and the following in
strument executed, viz: 'Winnebago City
Mimi, March 20, 1876: $50 bushels. Received o
Paul McKinstry, $50 bushels of No. hare
wheat at his risk in case of fire and free o
storage until sold. Winnebago Mill Co., per J
III. Cussens, Secretary"
The wheat was delivered to the mill company
What was done with it, or what use was mad
OF it, docs not appear from the bill of excep
| tlons. The money value of the wheat wa
afterwards, April 20, 1875 paid to the defend
ant and the receipt surrendered. 1t does nc
appear that this wheat or any wheat was o
hand when this pay ment was made.
Ihls is the payment IN respect of which th
recovery is sought on the ground that it was
| fraudulent preference.
There was trial by jury and a judgment fo
| the plaintiff. The defendant sues ous writ O
| error. and relies to reverse the judgment upo
| the following exceptions appearing in the bi
of exceptions:
'sThe plaintiff offered to show by the sal
witness that the wheat specified in said receip
as received from Paul McKinstry (Which wa
| the same wheat for which defendant wa
charged with having received the sum of M one
alleged in the mplaint) was not received fo
| the purpose of being stored or bailed, but wa
received for the purpose of being ground int
| flour at the mill of the said bankrupt, and t
be paid for in money by said company; an
| that that was the intention of the parties: t
the introduction of which evidence the counse
| for the defendant then and there objected o.
| the ground that the said receipt was in the ma
ture Of and was contract in writing and ex
not be altered or impeached oy parol proof"
After the evidence was concluded
the defendant by his counsel asked tn
court to charge the jury as follows:
''Winnebago City, March 20, 1S76.-Rd
of Paul McKinstry $50 bushels Of No. har
wheat at his risk in case of fire and free o
W1NNEBAGo CRY MILL Co.
per J. NJ. CUssENs, Sec
| That if the jury believe that the wheat fo
| which McKinstry received the money was re
| ceipted for by receipt similar to the abov
in form and date, that the same was bailmen
OF property, and not sale and that the as
| signee cannot impeach the receipt or contrac
expressed as above by parol proof, which in
struction the court refused to give, and t
which refusal SO to charge the e.defendant b.
his counsel then and there duly excepted.
Second-That if the jury believe that th
paying of McKinstry by Cussens for the Mi
| company, was upon and for the wheat receip
similar to the above, that the same was not
fraudulent preference in the law. The cour
refused so to charge the jury, and to whic
refusal the defendant by his counsel then an
there duly excepted
The following is the act Of the legislature Q
| the State of Minnesota referred to in the opir
ion of the court:
AN ACT TO REGULATE THE STORAGE OF GRAIN.
Be 1t enacted 6y the Legislature Of the State {
| Minnesota:
SECTION 1. That whenever any grain sha
be detiye1ed for storage to any person, associ;
tion or corporation, such delivery shall in a
things be deemed and treated as bailmer
and not as sale of the property SO delivered
Notwithstanding such grain may be mingle
by such bailee with the grain of other persons
and notwithstanding such grain may be shil
|
or other place where the same was stored. An
IN no case shall the grain SO stored and whic
| such bailee may hereafter be required to kee
on hand, be liable to seizure upon any proces
OF any court in All action against such bailee.
SEC. z. Whenever any grain shall be depo
atcd IN any warehouse, elevator, or other de
posltory for storage, the bailee thereof shall a
same, a receipt or other written instrument
which shall, in clear terms, state the amour
| kind and grade of the grain stored the term
| OF storage, and if advances are made, tn
words advance made;' which receipts sha
be p1ia7ad Jacae evidence that the holder thereo
has IN store with the party issuing such receipt
the amount OF grain of the kind and grad
mentioned in such receipt; and any any ware
houseman; proprietor of an elevator, or bailee
who shall issue any receipt or other written in
sSrument for any grain received TOR stordg,
which shall be false IN any of it's statements
shall be g lily of a nlisdemeanor; and shal
| upon conviction be punished by fine not ez
ceedlng three hundred dollars, or imprison
ment IN the county Jail not exceeding thre
months, OF by both such fine and imprison
| ment.
Sec 3. 1t shall be the duty Of every person
association or corporation reeeiUt7ag any graf
TOR storage, upon the demand of the bailor Q
assigns or representatives, and tender o
all charges for storage and money advanced b
'ue "aiiee, anu upon the talJn ana credit o
such bailment and offer to surrender the re
ceipt or other written instrument evidencin
the recent of such grain OF storage, to delive
to the person entitled thereto a quantity O
OF grain equal in amount and of the kind AM
grade delivered to such bailee. Every perso
and every member of any association or corpo
ration who shall, after demand, tender and of
fer as provided in section three (3) of this act
wilfully neglect or refuse to deliver to the per
son making such demand, the full amount O
grain Of the kind and grade which such perso,
is entitled to demand Of such baillee, shall b
deemed guilty of larceny, and shall be pun
ished by fine or imprisonment or both, as il
prescribed by law for the punishment of lar
ceny.
SEC. 4. Whenever, upon any demand, tende
or offer, as provided in section three (3) of thi
act any such bailee shall neglect or refuse tt
deliver any grain received for storage, or