
    Gardiner et al. v. Suydam et al.
    
    
      Title to personal property. — Warehouse receipt.
    
    A warehouseman’s receipt for a quantity of flour, in store, does not pass thr title, until it is actually separated from the mass; it merely gires a righ of action against the receiptor.
    Appeal from the general term of the Supreme Court, in the eighth district, .where a motion for a new trial, made on a bill of exceptions, had been denied, and judgment rendered on a verdict in favor of the plaintiffs.
    This was an action of trover, for the conversion of five hundred barrels of flour, which had been stored by one Hollom Hutchinson in the warehouse of P. Carpenter, at Scottsville, in Monroe county, and subsequently forwarded to the defendants, in New York. The plaintiffs claimed title as the holders of a warehouse receipt.
    Hollom Hutchinson, prior to the 7th December 1844, had deposited in the warehouse of P. Carpenter, 536 barrels of flour, 325 of which had been delivered to John Allen, a common carrier, under Hutchinson’s authority, and the other 201 barrels remained in the * oro i store- *On that day, Carpenter gave Hutchinson -I a receipt for the 536 barrels, subject to his order, upon which Hutchinson indorsed an order for its delivery to Allen, and received from the latter a receipt for the same, “which I agree to forward to Messrs. Suydam, Sage & Co. (the defendants), New York, on the opening of canal navigation, subject to storage and the usual transportation.” To this receipt Hutchinson annexed his draft upon the defendants for $1876, at 60 days, which was accepted by them, negotiated by Hutchinson, and paid at maturity.
    On the 7th February 1845, Hutchinson commenced the delivery of more flour at the warehouse, and continued to deliver it, in parcels, daily, until the 14th April, when he had delivered 2068 barrels in addition to the 201 in store on the prior 7th December. On the 17th February 1845, Carpenter gave Hutchinson a receipt for 503 barrels, subject to his order; upon which the latter indorsed an order for the delivery thereof to Allen, and took from Allen a receipt for the same “which I engage to forward to Messrs. John D. Gardiner & Co. (the plaintiffs), on opening of canal navigation, subject to usual freight, for them to sell on acc’t; Mr. Hutchinson to pay the above draft.” To this receipt was annexed a draft upon the plaintiffs, which they accepted and paid, in the following terms:
    “ $1760. Eochester, Feb. 7,1845.
    Three months" after date, for value received, pay to the order of Henry W. Davis, Esq., cashier, seventeen hundred and sixty dollars, it being an advance on five hundred and three barrels flour, the receipt whereof is hereto annexed, and charge the same to my account.
    Hollom Hutchinson,
    Messrs. John D. Gardiner & Co., Boston.”
    ^Hutchinson continued the storage of flour in ^ the warehouse, and receipts were given to him, from time to time, each covering the number of barrels, not previously receipted for; in some of them, the flour was made deliverable to Hutchinson’s order, in others, to the order of third persons. Two of these receipts embracing the first 1142J barrels were indorsed over to Allen, and other receipts taken from him for the flour, to be shipped to the plaintiffs. These were sent to the plaintiffs, annexed to their acceptances for advances, which were subsequently paid.
    All the flour was of the same quality, and deliveries were made indiscriminately from the mass. The first shipment of 600 barrels was made on the 14th April 1845, 500 of which were delivered by Allen to the defendants. The remainder was shipped between that day and the 28th, consigned to others than the plaintiffs. On the 20th January 1846, the plaintiffs made a demand upon the defendants for the 500 barrels, shipped to them on the 14th April 1845, and upon a refusal, this action was brought.
    Upon the trial, before Sill, J., the defendants’ counsel requested the court to charge, that the plaintiffs could not recover, unless they were satisfied, that the defendants received the identical flour referred to in the receipt annexed to Hutchinson’s draft which the plaintiffs had accepted and paid. The learned judge, however, declined so to charge, and instructed the jury that the plaintiffs were entitled to recover for the 500 barrels sent to the defendants, deducting the 201 barrels which * Qfín i were *n *^e wareh°use on the 7th December -* 1844; and directed them to find a verdict for the plaintiffs for the value of the 299 barrels of flour, at the time of the demand and refusal. To which exceptions were taken by the counsel for the defendants.
    There was a verdict for the plaintiffs, in accordance with the charge of the court, and the general term having denied a motion for a new trial, and entered judgment on the verdict, the defendants took this appeal.
    
      Selden, for the appellants.
    
      Comstock, for the respondents.
   Ruggles, C. J.

The 299 barrels of flour for which the plaintiffs recovered their verdict were delivered, by Carpenter, the warehouseman, at Scottsville, in Monroe county, to Allen, the forwarder, on the 14th of April 1845, and shipped by him, on that day, on board the canal boat Maine, to the defendants. The, flour was consigned to the defendants at New York, who received it there.

To entitle the plaintiffs to recover, it was incumbent on them to show themselves to be the owners of this identical flour, at the time it was actually delivered by the warehouseman to the forwarder. It was not enough, for the plaintiffs to show that they had a right to call upon Carpenter, the warehouseman, for an equal or greater number of barrels of flour, nor was it enough, for them to show that the defendants were not at that time the owners of the flour in question. The plaintiffs must recover on the strength of their own title, or not at all.

During the winter of 1845, Carpenter had received in store from Hutchinson 2068|- barrels of flour, exclusive of 201 barrels which Hutchinson had deposited there, on or before the 7th of December 1844; so that when the flour in question was shipped to the defendants in New York, Carpenter had in the whole 2279j- barrels in his store, which had been delivered to him by Hutchinson. The flour was all put into the storehouse together; it was not kept in distinct or separate lots; it was packed as close as it could be packed, without any separation; it was all of the *same brand, of the same quality # and of uniform value. The warehouseman, in *- shipping the flour, could not tell when the flour in any one shipment .was received. The warehouse was filled three tiers deep; and as flour came in, it was put on the top and spread over the warehouse, and when the warehouseman commenced delivering, he took the flour straight through the middle of the warehouse, fronr door to door, so as to have a passage to work in.

The plaintiffs, by their acceptance of Hutchinson’s drafts, with Allen’s receipts annexed, were undoubtedly entitled, as against Hutchinson and Allen, to 11421-barrels of flour out of the quantity contained in Carpenter’s warehouse; but until the flour to which they were thus entitled- was separated from the mass in the warehouse, by actual delivery or by some mark or designation by which it could be specifically known, no title passed to the plaintiffs, as against the defendants or other persons who had similar claims on the flour, nor as against Hutchinson or Allen.

The defendants held the receipt of Allen for 536 barrels of flour, dated 7th December 1844. But it is said, that they were not entitled to so much, because, at the date of the receipt there were only 201 barrels of Hutchinson’s flour in the store, and that the receipt in that respect was false. This may be true; but the plaintiffs’ title is liable to an objection of the same nature. Allen’s receipts to them were untrue, in respect to a fact which was vital to the plaintiffs’ title. They purported that Allen had actually received into his own custody, by delivery from Hutchinson, 1142J barrels of flour which he engaged to deliver to the plaintiffs. The plaintiffs probably so understood it, and if this had been true, and the flour so delivered had actually come to the defendants’ hands, the plaintiffs would have been entitled to recover. But this was not so; Allen had in fact received no flour from Hutchinson or Carpenter. The flour to which the receipts held by the plaintiffs were supposed to apply, remained in Carpenter’s store, undistinguished' and undistinguishable from the residue of the 2279 barrels in which it was included. For a part of *this mass, the defendant held Allen’s receipt, J and to other portions of it, Dows & Cary had similar claims.

The effect of Allen’s receipts and engagements, in connection with their delivery to the plaintiffs, and the plaintiffs’ acceptance of Hutchinson’s draft, was, to give the plaintiffs a right to demand from Allen the delivery of the flour according to his engagement. Without delivery or some equivalent severance of the quantity claimed, from the mass in which it was included, they have no title to any specific part. The flour to which the receipts held by the plaintiffs is supposed to relate was in the warehouse, at the time when the plaintiffs’ title is supposed to have been perfected; and it was there mixed with the flour previously there, and incapable of being distinguished from it. If the sales to the plaintiffs had been of some specified undivided portion of the mass, then in the warehouse, they might perhaps be regarded as vesting the title of such undivided portion in the plaintiffs, by constructive delivery, because nothing further was required to be done to complete the delivery, according to the terms of the contract. But each transaction purported to be a sale of so many barrels, in severalty, and was, therefore, imperfect and incomplete, until severed by some designation of the specific thing sold. Until that was done, the transaction operated as a contract to sell, and not as a transfer of title. (Austen v. Craven, 4 Taunt. 644; White v. Wilks, 5 Id. 176; overruling Whitehouse v. Frost, 12 East 614.) It was impossible for the plaintiffs to say, whether any particular barrel of flour belonged to them, or to the defendants, or to Dows & Cary. If the flour to which the plaintiffs’ contract was supposed to apply had been identified by some mark by which it could have been known or distinguished, there would have been a constructive delivery sufficient to pass the title. But this case, like that of the oil in White v. Wilks, turns on the point that the goods agreed to be sold were not separated from the greater quantity of the same articles in which they were included, and, therefore, no title passed to the plaintiffs.

Again, the judgment of the court below was rendered * 363 1 ^ plaintiffs, on the ground that the defend- -* ants had no title to more than 201 barrels of flour, because there was no more than that amount in the warehouse on the 7th of December, when the sale to the defendants of 536 barrels was made. The judge who delivered the opinion of the court below very properly admits, that had the question arisen between the defendants and Hutchinson, the defendants would have been entitled to make up the quantity of 536 barrels out of the flour subsequently delivered; he puts this admission on the ground, that Hutchinson would have been estopped from denying that the whole quantity was in the warehouse at the date of the receipt.

I agree, that if the transaction between Hutchinson and the plaintiffs was sufficient to pass a title to the quantity specified in the receipts, without designation or actual delivery, then the defendants were entitled, as against Hutchinson, to 536 barrels of flour, and as against him, the defendants might have taken out of the flour subsequently deposited, enough to make up that number of barrels; not, however, precisely on the ground stated by the learned judge, but on the ground that the sale operated as ,a warranty of title to the quantity specified in the receipt, and that subsequent deposits by Hutchinson inured, by way of estoppel, to the benefit of his vendees. On this principle, the subsequent deposits by Hutchinson became the property of the defendants, the moment they were delivered at Carpenter’s warehouse. The flour to which the plaintiffs’ receipts are supposed to apply, was delivered, according to the evidence, in wagons, in small quantities, from day to day, as manufactured, varying from 20 to 100 barrels per day. The sales to the plaintiffs appear to have been made, in each instance, some' days after the flour had been delivered at the store by Hutchinson; and if the principle above stated be sound, so much of the flour sold to the plaintiffs as would make up the amount of 536 barrels due to the defendants (that is to say 335 barrels) belonged rightfully to the defendants, when it was sold to the plaintiffs. On this view of the case, therefore, the plaintiffs were not entitled to recover.

The judgment of the court should stand, in my opinion, on *the ground, that there was no such actual or constructive delivery of the specific ■- quantity of flour mentioned in the plaintiffs’ receipts, as was necessary to pass the title therein to the plaintiffs.

Judgment reversed, and new trial awarded.

Welles, J., dissented.  