
    Bashinsky & Co. v. Seals.
    
      Action against Warehouseman to recover Damages for Loss of Cotton.
    
    1. Action against warehouseman for loss of cotton; sufficiency of complaint. — In -an action against a warehouseman to recover damages for the loss of six bales of cotton, it was averred in the complaint that during the season beginning September 1, 1899, plaintiffs were engaged in the business of buying and selling cotton as brokers; that the defendant was the proprietor of a warehouse in the same town, in which he stored and weighed cotton for hire; that plaintiffs and defendant had many dealings together in the cotton business; that defendant issued a receipt for each bale of cotton stored with him showing the mai-ks and weights; that there had arisen between plaintiffs and defendant an established custom in the manner of conducting their cotton tranasactions, by which, when plaintiffs had bought cotton stored in defendant’s warehouse and desired the cotton to be shipped, he gave defendant orders therefor, and it became the duty of the defendant to send the cotton to a cotton compress, from which the defendant would take compress receipts and would keep such receipts until the' plaintiffs presented the warehouse receipts, when he would deliver to the plaintiff the compress receipts for the corresponding -number of bales evidenced by the warehouse receipts, and-which had been.-ordered-by plaintiffs to be shipped; that the com-press receipts ‘did not describe the cotton in particular; that in making-the exchange between the plaintiffs and the defendant of the warehouse receipts, it was immaterial what receipts were delivered to the warehouseman for the compress receipts, provided the. warehouse receipts called for the cotton which had been ordered to be shipped out previous to- the time of the exchange of such receipts; that on September 21, 1899, in making the' exchange of the warehouse receipts held by him for the compress receipts which were taken or should have been taken by the defendant when he turned over cotton to the compress ordered by the plaintiffs to be -shipped out, it was discovered that defendant did not have compress receipts for six bales of cott-on which plaintiffs had ordered shipped out, and for which plaintiffs presented warehouse receipts issued by the defendant; that on account of the manner in which plaintiffs and the defendant did business with the compress company, it was impossible to ascertain what particular six bales of cotton defendant had' failed 'to obtain receipts for; that by reason of the failure of the defendant to obtain receipts for such six bales of cotton from the compress company, the corn-press receipts had never been delivered to the plaintiff, and he is unable to require the compress company to deliver him six bales of cotton which he should have received; that defendant, by his negligence, failed to obtain compress receipts for such six bales of cotton, or by his negligence allowed said receipts to be lost, stolen or misplaced,'and plaintiff’s property therein has been wholly lost and destroyed by reason of defendant’s negligence. Held: Said complaint is insufficient to present a cause of action, and a demurrer thereto upon said ground should be sustained.
    Ax-’Peai. from the Circuit. Court of Pike.
    Tried before tlie I-Ion. John P. Hubbard.
    This action was brought by Bashinsky & Co., the appellants, against .the appellee, J. M. Seals The complaint was ill words and figures as follows: “Plaintiff claims of defendant tlie sum of $275, damages to plaintiff caused by tlie defendant by reason of defendant’s wrongful conduct to tlie plaintiff in tort as shown by tlie facts following: ' Heretofore during tlie cotton season, beginning September 1st, 1899, plaintiff was engaged in tlie business of buying and selling cotton as a broker, and defendant was tlie proprietor of cotton warehouse in the city of Troy, storing and weighing-cotton for hire; that, during the present and previous cotton season plaintiff and defendant have had considerable business transactions in the cotton business; defendant issued a receipt for each bale of cotton stored with him, showing the mark and weight thereof, and that said cotton was held in defendant’s warehouse subject to said receipt, on paying the customary charges and all advances, acts of providence’ and fire excepted. And plaintiff alleges that there is a cotton compress in Troy, and when cotton is shipped out of the warehouse, ix goes through the compress. That there has arisen between the plaintiff and defendant, an established custom in the manner of conducting their cotton transactions, so that ivhen plaintiff is the holder of warehouse receipts for cotton in defendant’s warehouse, having bought said cotton in due course of business, and desires said cotton to be shipped, he gives the defendant a written order to ship cotton bearing certain marks. Whereupon it becomes the duty of the warehouseman to send the cotton to the cotton compress,-and he sends therewith a dray ticket, which does not describe the cotton, and the compress punches one hole in such ticket for each bale of cotton received. When the cotton so ordered out is delivered in this manner to the compress, the warehouseman takes his dray tickets, and receives from the compress, compress receipts for the number of bales of cotton shown by the punches in the dray tickets. The warehouseman keeps the compress receipts until the broker presents his warehouse receipts, whereupon the warehouseman delivers "to the broker compress receipts for the number of bales of cotton ordered out, and receives in- exchange therefor his own ■warehouse receipts for the same number of bales of cotton, said warehouse receipts being receipts for cotton which liad previously been ordered out by the broker, the broker delivering to the warehouseman warehouse receipts for any cotton which he had ordered out in exchange for the compress receipts, which latter receipts do not describe any cotton by their marks or otherwise. All such cotton so delivered to the compress has the plaintiff’s private mark on the same, and the compress corn-pan,y delivers any of the cotton in its possession so marked to the holder of tin' compress receipts for plaintiff’s cotton, delivering one bale for each bale contained in the receipts presented. In making the exchange between the plaintiff and defendant of the compress and warehouse receipts, it is immaterial what receipts are delivered to the warehouseman for the compress receipts, provided the warehouse1 receipts call for the cotton which has been ordered to be. shipped out previous to the time of the exchange; and plaintiff alleges that it is customary to deliver the oldest receipts first in making the exchange. Plaintiff alleges that in September, 1899, he held considerable cotton in defendant’s warehouse, stored for a mvard for which he held warehouse receipts, and prior to September 21, 1899, plaintiff had ordered a lot of his cotton shipped out of said Avarehouse, according to said custom, and on to-wit, September 21, 1899, plaintiff and ’defendant Avere exchanging Avarehouse receipts calling for the cotton which plaintiff had ordered shipped out, for the compress receipts which defendant had, received in shipping out said cotton, which, receipts defendant had or should have obtained from the compress company for all of the. cotton AA-hich plaintiff bad ordered shipped out, for Avhicli be held receipts in defendant’s Avare-house, Avlien it Avas discovered that defendant did not have compress receipts for allot the cotton avIiícli plaintiff bad ordered shipped out, and for Avhioh plaintiff presented Avarehouse receipts in defendant’s Avarehouse. but Avas short, to the amount of six bales of cotton of the average Aveiglif of to-wit, 500 pounds, and of the average grade of to-wit, middling. That on account of said manner in AAdtich plaintiff and defendant did business with the. compress company, it was impossible to ascertain what particular six hales of cotton defendant had failed to obtain receipts for, in exchange for the receipts which plaintiff presented of the cotton plaintiff had ordered shipped; and in making said exchange plaintiff retained receipts for six bales of cotton which he bad ordered shipped out. of defendant's warehouse, and which defendant had reported had been delivered to the compress company. That subsequent thereto and moon several occasions plaintiff made similar shipments of his cotton out of defendant’s warehouse in the manner above stated, and in making the exchange of receipts plaintiff exchanged the oldest receipts held by him in order to stop the storage, so that the receipts which were first retained by.him were delivered to the defendant on the second exchange of receipts after said shortage, and other receipts were "retained by the plaintiff, and similarly at such exchange of receipts, plaintiff retained six receipts, and now holds six receipts for cotton stored in defendant’s warehouse, for which number of halt's of cotton plaintiff has never received compress receipts, nor has the same been otherwise delivered to plaintiff, nor are they in defendant’s warehouse, nor have their value been accounted for to plaintiff. And plaintiff alleges that without, compress receipts for said six hales of cotton he could not require said compress company to deliver him the six bales of-cotton which he should have received, which he has in fact never received And plaintiff alleges that defendant, by his negligence, failed to obtain compress receipts for said six líales of cotton, or having obtained same, from said compress, defendant, by his negligence, allowed said receipts to be lost, stolen or misplaced, and without said receipts said compress has failed to deliver to plaintiff said six bales of cotton, and plaintiff’s property therein has been wholly lost and destroyed by reason of defendant’s negligence, wherefore he sues.”
    The defendant demurred to the complaint, among others, upon the following grounds: 1. Because said complaint- fails to show that plaintiff has any cause of action against the. defendant. 2. For further demurrer defendant, says, that the negligence alleged against defendant in said complaint are conclusion's, and fails, to -sIioav sufficiently of what defendant’s negligence consisted. This demurrer was overruled.
    The cause was then tried upon issue joined upon the plea of the general issue and defendant’s special plea.
    Tinder the opinion on the present appeal it is unnecessary -to set. out the facts of the case in detail. There were verdict and judgment for the plaintiff. Thereafter the defendant made a motion for a new trial upon several grounds, - among which were the following: ' 1. Because the plaintiff had no cause of action, and the demurrers to the complaint should have been sustained, and the motion to strike granted. 2. Because the court erred in refusing to give to the jury the affirmative charge asked in writing by defendant- This motion was granted-and to this lulling the. plaintiff duly excepted. From the judgment granting a new trial the present appeal is prosecuted, and the rendition of such judgment is assigned as error.
    -Foster, Baaiforp &■ Carroll-, for appellants.
    The complaint states a cause of action and shows that under the custom that had been established between the plaintiffs and the defendant, the defendant was under the duty to receive compress receipts from the compress company- for ’cotton ordered out of his warehouse by the plaintiffs, and to deliver these receipts to the plaintiffs. A warehouseman is only bound for ordinary diligence, but when the goods' are not 'accounted for, negligence is 'presumed and the. burden is on the warehouseman to show their loss, while in the exercise of due diligence, which varies with the circumstances, and is a question of fact for the jury. — Davis v. Hurt, 114 Aa. 149; Seals v. Fdmoiuhon, 71 Ala. 509; Prince v. Ala. St-. Fair, 10G Ala. 346, 347:
    Even if the compress company ivas- the direct cause of the loss, through negligence, Seals could have reasonable foreseen that such act would occur, he knowing the custom of the compress-, after his own negligence, and therefore, is liable. — 16 Amer. & Eng: Ency. of Law, 44(5-7; 1 Jaggard on Torts, 73-4; Jones v. Finch, 128 Ala. 217.
    I). A. Baicek, contra.
    
   SHARPE, J.

If tlie delivery of plaintiffs cotton to tlie compress company was authorized, that delivery ended all duty and liability which the law imposed' on defendant as warehouseman with respect to the cotton. The talcing from the compress company of a receipt for the cotton was not embraced in that duty, unless by special agreement, express or implied, the authority to deliver was conditioned upon the procurement of a receipt, in which case it may be that the plaintiff, if not acquiescing in the delivery, could have ignored it and held the defendant to answer either in assumpsit for a breach of the contract of bailment, or in tort as for a breach of duty attached by the law to that contract. Tinder such conditions the failure to deliver or the wrongful disposition of the cotton would constitute the gravamen of an action appropriate for recovery. This complaint does not state such a case. The conduct it attributes to defendant as being tortious and damaging is an alleged negligent failure on his part to obtain receipts shoAving delivery of the cotton to the compress company, the delivery itself not being complained of. Hoav any duty to obtain a receipt Avas made incumbent on defendant is not shown, unless by a custom Avhich is alleged to have existed as between the parties. A course of dealing or customary mode of transacting business inlei• partes may afford an inference of Avhat the parties may have silently understood in regard to a particular transaction falling within the custom, and may, therefore, be evidential of an agreement. But from the facts aArerred in this complaint, including the custom of taking receipts for cotton carried from the Avarehouse to the compress company, it does not follow as a legal conclusion that there Avas any contract Avhere-by the custom Avas made to operate as a limitation upon the authority given by plaintiffs to the defendant to deliver the cotton in question, or whereby the defendant became otherwise bound to procure a receipt. Under the facts as averred, defendant’s omission in that regard amounted to a departure from the alleged course of business — a breach of custom and not a breach of legal duty, either general or contractual. Failing to show such a.breach, the complaint was not only subject to the demurrer, but was insufficient to present a cause of action. Whether the mere omission to obtain a receipt could have proximately.caused a loss of the cotton delivered is not a question raised by this record.

The judgment granting a new trial involved no error, and will be affirmed.  