Year: 1878




vessels to any such warehouseman or other per-


son, shall be negotiable, and may be trans


ferred by Endorsement and delivery of such re-


ceipt or bill of lading; and any person to whom


the SAID receipt or bill of lading may be trans


ferred, shall be deemed and taken to be the


ownef OF the goods. wares or merchandise


therein specified, SO as to give security and


validity to any lien created the same, sub


Ject to the payment of freight and charges
thereon Provided, that all warehouse receipts
: OF bills OF lading, which shall have the words


not negotiable plainly written or stamped


on the face thereof, shall be exempt from the


provisions of this act.


SEQ q. No person receiuing or holding grain in


store shall sell or otherwise dispose of deliv-


er out OF the storehouse or warehouse where


such grain is held or stored the same or any
! part thereof without the express authority of
the owner of such grain, and the return of the
receipt given for tho same, except as herein
provided.


/ SEC 7. It shall be unlawful for any ware
heuseman, or owner or keeper of any elevator,
or any agent of either, to mix together any


grain of different grades, SO received In store


or to select different qualities thereof of the


same grade Tor the purpose of storing or deliy-
erlng the same, or attempt to deliver grain of
one grade for onother. or in any way tn tamper


with any grain of other persons while in his
possession or custody, with view to securing


any profit to himself Or any one without the
consent of the owner


SEC s. Any warehouseman or other person
violating any of the provisions of section six
: (6) or section seven (7) of this act, shall be
: deemed guilty of a felony, and upon convic-
tion shall be lined ia sum of not over one


Thousand dollars, or imprisonment in the State
prison OF this State not exceeding FIVE years. or
both.


3 SEC. g. This act shall take effect and be in


force from and after its passage.


Approved March 3, 1876.


. Gilman, CIough & Lane, for the plaintiff


defendant in error)


g Andrew G. Dunn for the defendant (plaintiff
in error).


DILLON, Circuit Judge:


q Grain may be disposed of by the owner to
t warehonseman or to an elevator or mill proprie-
/ tor, either by sale or baiment. In the former
e the title passes; in the latter it remains with
n the owner. 1t is sometimes difficult to deter
mine whether a particular transaction is a sale
: or balinent. II specific amount of grain ID
Il deposited by the owner, which is not to be
It changed by the bailee, but retained until
l. called for when the Identical grain is to be
Z, stored this Is, of course, plain of bail
Il ment. Under the Minnesota statute of March
d ), 1876, however, it might be, in the
# absence of such an enactment, a
}. speclhc amount of grain deposited


for storage does not cease to be a bailment
7. and does not become SALE because it is min
ie gled by the warehouseman or elevator mill
. proprietor with the grain of other persons
IS since The statute authorizes the intermiXture
of grain of the same kind and grade, and rec
ot ognlzes the continued ownership of the eposit-
n ors to 3 quantity of grain equal in amount to


that by them respectively deposited. Prior to
le the enactment of the statute lust mentioned
it was decided in Rahillys case g Dillon, 42O),


where there was an express contract
Or agreement implied from the known and in
of variable course of business, that the warehouse
N man or elevator proprietor might mingle the
III specific wheat received with ether wheat OF


like kind and grade, and ship sell at his
ID pleasure with the further agreement or under
ot standing that on demand he would pay the
as person from whom the grain received the
IS highest market price, deliver the same
~ amount of grain Of like quality but not the
or identical grain deposited, nor grain from any
IS specific mass that such 3 transaction was u
TO sale at the time of the delivery, and not bail
TO ment.


ID There is an inherent difference between bail
20 ments and sales. If I deposit my wheat to be
ell stored and safely kept for me. my property re-
N mains, and extend credit to the bailee.
a But it leave my wheat with him with author
< ity to sell it for his benefit, and not as my
ID agent, and upon his promise to pay me the


value of the wheat, or to give me like guam
/, tity of wheat when I shall demand it, the
,e transaction is in essence sale of my wheat


and the extending by me of personal credit
for It's value. l see satisfactory evidence
d that the act of the Minnesota Legislature of
II March 3, 1876, meant to abrogate essential dis


tinetiona between baiments and sales, SO far,


at least, as to place the grain who
C. authorized the warehousemen to sell and the
or grain owner who only authorized him TO store
O. and safely keep, upon the same footing. Let
re me illustrate. Suppose deliver l 900 bushels
1T OF wheat to a warehouseman elevator pro-
s. prietor with authority to sell, ana it is sold
ct and the next day you deliver to him 1,O0O
L bushels to store and he does 50; the next
20 day he fails with your 1000 bushels


it intended by the Minnesota legislature that !
10 might take the 1000 bushels by replevin or
IL even share it pro rata with you? 1t seems to
1t me not. The act, although not carefully
a drawn and in many Of its provisions far from
rt clear, seems throughout to confne its remedial
n provisions to persons who deposit grain ''for
ID storage" or safe keeping, and not to those who


deposit it with authority to sell.


of The act is conceded to have been passed in
n consequence of the decision in Rahillys case,


and have felt in view of the facts of that case,


considerable embarrassment in ascertaining its
Of precise scope, although its general purpose is


manifest.
IL While it must be admitted to have made i'm
a. portant provisions to protect persons who
III deliver grain for storage, | am inclined to
Mt think that it was not intended to embrace the
d, case of persons who deliver grain to the ware
ed houseman with express authority to sell the
s, same on his own account and upon an under
p standing that he Is to pay the value Of like
r, quantity of grain or to deliver like amount
I'd upon demand; nor to embrace the case of one
"a who leaves wheat with miller with authority
sp as in Randell's case Law Rep, 8 Privy Coun-
IS Gil Appeal Gases, 1O1) TO it as part of his


current consumable stock and upon an agree
s. ment to pay the farmer or owner the value or
e to deliver like quantity when demanded.
s. The first section Of the Minnesota act if it
le stood alone, might be construed to cover cases
t, such as those just mentioned, but
H. the sixth section forbids the warehouse
is man or other person receiving or holding
grain in store to sell otherwise dispose of OF
II deliver out of the storehouse or warehouse
of where such grain is held stored, the same OF
t. any part thereof, without the express authority
le of the owner Of such grain and the return OF
e. the receipt given for the same.'' No more eff
fectual protection can be given to depositors of
n grain than this requirement that their grain
e. shall not be sold, disposed OF or delivered out
s. of the warehouse the place where it is stored
IL without their consent.


< Unless the depositors otherwise agree, the
n grain deposited, or at all events, an equal
ee amount Of the same grade, is always kept on
Il hand, and without their consent, the bailee is


not authorized to sell it or to consume it, and
n, substitute other grain in its place. If it is
n wronpfully sold or disposed of, it may be true
or that the owners rights will attach to other
If grain substituted in its place or to any
" grain which the baiee may own, but We have
II no occasion now to discuss determine the
e. point. See Kent Com. 500, 18th Ed, AIR.
lg Holmes note.


er In case of the insolvency of the warehouse
'f man, or mill or elevator proprietor, where the
d grain on hand does not equal the amount Of
n outstanding receipts, person who has author
D lied his wheat to be sold or consumed, and
f. pursuant to which authority it has been sold
t. and removed or consumed, cannot come in COM
r. petition as respects grain on hlnd with deposi-
# tors for storage only who have never authorized
n any sale, disposition or removal of their grain
e The act authorizes the depositor of grain for
l. storage to demand and receive receipt there
S for: makes II Crimlnel IsSue q auduIent ra