
    E. V. WEBB and DIBRELL BROTHERS, Inc., Trading as E. V. WEBB & COMPANY v. A. FRIEDBERG and MAX FRIEDBERG, Partners, Trading as A. FRIEDBERG & BRO., and F. W. BROWN, Commissioner of Court, and MARYLAND CASUALTY COMPANY, Intervener.
    (Filed 18 February, 1925.)
    1. Warehousemen — Receipts—Negotiable Instruments — Statutes.
    Whether an individual, partnership or corporation, the warehouse receipts issued for tobacco by a storage warehouse company for profit, formed under our statute, are made negotiable when properly endorsed by the one storing tobacco therein, and passes the title to the transferee, (C. S., secs. 4041, 4042, 4044, 4045, 4046), and it is immaterial whether those operating the warehouse use the same for the storage of their own tobacco with that of others.
    
      2. Same — Attachment.
    Where the owner of tobacco stores the same in a warehouse organized under the provisions of our statute, receives a warehouse receipt therefor in conformity with the law, C. S., 4045, 4046, the goods represented by the receipts are not subject to attachment, C. S., 4065, and a specific remedy for creditors of the owner is given against the holders of these receipts, O. S., 4066, and attachment will not lie against the tobacco stored by a creditor of the owner that will impair the rights of one who is a holder of the receipts thus issued.
    3. Same — Judgments of Other States — Records — Evidence — Constitutional Law.
    Where tobacco was stored in a warehouse here existing under the laws of this State, and in conformity with our statute a negotiable receipt had been issued the owner thereof, and the funds of such owner had been attached in New York in the courts of that State, and a surety or re-plevin bond given to await the determination of that suit, and that Court upon sufficient evidence had adjudged that the surety is liable and that the owner endorse the receipts to the surety company upon the payment of the money, which the surety company accordingly has paid: Held, the duly authenticated record in this Court according to our statutes (C. S., Yol. 2., appendix III) and under the Federal Statutes (U. S. Rev. Stat., 905 et seq.), is properly received' in our courts as evidence, and given effect under Article IY, section 1, Constitution of the United States.
    Appeal by both plaintiffs and defendants from Morton, J., and a j’ury, at February Term, 1924, of Lenoie.
    Attachment suits were issued by plaintiffs against defendants. This attachment suit was matured by the plaintiffs against the defendants, and a judgment rendered in favor of the plaintiffs. In addition and after rendition of this judgment the Maryland Casualty Company was allowed to intervene, and the trial came on for the purpose of disposing of the claims of the intervener. The court held in the outset that the burden was upon the intervener, to which no exception was taken.
    The following issues were submitted to the jury and their answers thereto:
    “1. Is the intervener, the Maryland Casualty Company, the owner of the tobacco in controversy by virtue of the transfer of the tobacco warehouse receipts? Answer: ‘Yes.’
    “2. Is the intervener entitled to lien prior to that of E. Y. Webb & Company by virtue of the transfer of E..B. Eicklen Tobacco Company attachment judgment rendered in Pitt County Superior Court? Answer: ‘Yes.’
    “3. What assets has the intervener received as security in addition' to the transfers sued on herein ? Answer : ‘$20,000.’
    “4. Is the intervener entitled to be subrogated to the rights of E. B. Eicklen as against the plaintiffs? Answer: ‘Yes.’ ”
    
      Both the intervener and plaintiffs introduced evidence to sustain their respective contentions.
    Numerous exceptions o£ plaintiffs and intervener, Maryland Casualty Company, and assignments o£ error appear in the record. From the judgment plaintiffs and intervener both appealed to the Supreme Court. Further facts material will be stated in the opinion.
    
      John G. Dawson and Varser, McLean & Stacy for plaintiffs.
    
    
      Rouse & Rouse for Maryland (Casualty Co., intervenes.
    
   ClaeKSON, J.

In the present case the plaintiffs and the intervener, Maryland Casualty Co., both appeal. ¥e will consider the cases together. Although the record is voluminous, there are only a few material facts. There is no serious dispute about the facts on the first, second and fourth issues. From the entire record they will be treated as admitted. The law, for our decision, arising on the evidence, we will consider as it appears to us presented on the entire record.

The facts succinctly are: E. B. Eicklen Tobacco Co., Inc., sued defendants, who are nonresidents of North Carolina, and attached certain tobacco, the actual tobacco 104 hogsheads of leaf tobacco, in certain warehouses in North Carolina, in Eicklen Warehouse, Dodson Warehouse and Kinston Storage Warehouse, and also in New York attached certain cash money and claims against various insurance companies. Both suits are based on the same claim. The plaintiffs made a subsequent attachment to the Eicklen attachment and attached the same actual tobacco in the warehouses in North Carolina, but not the warehouse receipts. E. B. Eicklen Tobacco Co., Inc., obtained judgment in New York against defendants for its debt and also judgment in the attachment case in North Carolina. The intervener, the Maryland Casualty Company, became surety for the defendants in the Eicklen attachment in New York. The warehouse receipts for the tobacco were not attached when the attachments were sued out in North Carolina. The defendants delivered the warehouse receipts to E. B. Eicklen Tobacco Co., Inc., in the early part of June, 1920. E. B. Eicklen Tobacco Co., Inc., sued the intervener, Maryland Casualty Co., in New York, and the New York Court in its judgment compelled E. B. Eicklen Tobacco Co., Inc., under its protest, to assign the warehouse receipts and the North Carolina judgment and attachment to the Maryland Casualty Co., before it was required to pay the amount of the surety bond — $25,000. This judgment of the Court in New York was after plaintiffs’ attachments. The Maryland Casualty Company then became interveners in the present case, after plaintiffs had obtained judgment against the defendants, but before the proceeds of the tobacco was applied. It was admitted that the actual tobacco attached in North Carolina in the suits was sold and the proceeds amounted to $9,470.81 and were in the hands of the commissioner of the court, who is a party to this action.

It was in evidence that the warehouses in which the actual tobacco was attached in North Carolina, were operated by E. B. Eicklen Tobacco Co., Inc., Kinston Storage Warehouse Co., and C. E. Dodson Storage Co., and the customary warehouse receipts were given (C. S., 4042) for the tobacco in the'warehouses. It was in evidence that these warehouses were used for the storage of the tobacco in which the concerns has an interest and is used for the storage of tobacco either for the concerns or the customers. The receipts are similar to the Eicklen one, which is as follows:

“The following warehouse receipts issued by E. B. Eicklen Tobacco Company, Inc., Storage House at Greenville, N. C.
26 Hogsheads 05 Nos. 1 to 26 inclusive, lbs. 27,827.$5,565.40
26 Hogsheads 02 Nos. 38 to 63, inclusive, lbs: 28,125 .$7,734.38”

and each receipt contains the following printed matter:

“The within described hogshead of tobacco is stored at the warehouse of the E. B. Eicklen Tobacco Co., Inc., Storage House by A. Eriedberg & Bro., and will be delivered to the holder of this note on demand and payment of charges. No claim for damages on storage allowed, unless made before delivery. The storage rates are $1.50 for first six months or less, fifteen cents per month thereafter, 25c. outage. The E. B. Eicklen- Tobacco Co., Inc., Storage Warehouse, is not responsible for loss or damage by fire.”

C. S., ch. 79, entitled “Warehouse Eeceipts,” sec. 4037, defines “Warehouseman” as meaning person lawfully engaged- in the business of storing goods for profit,” and “person” includes a corporation or partnership of two or more persons having a “joint or common interest.” Sec. 4041. “Warehouse receipts may be issued by any warehouseman.” Sec. 4042. What receipt must contain. See. 4044 defines nonnegotiable receipts. Sec. 4045 provides how nonnegotiable receipts marked. Sec. 4046 defines negotiable receipts. Sec. 4065 makes goods not subject to attachment or execution when negotiable receipt is issued. Sec. 4066 gives creditors remedy against receipt.’

In the case of E. B. Ficklen Tobacco Co., Inc., v. Friedberg & Bro., in the Supreme Court of New York, Mr. Justice McAvoy, on 9 February, 1922, rendered the opinion on this warehouse receipt matter as follows: “That the levy made by the sheriff of Lenoir County under the order of attachment issued by the Superior Court, Lenoir County, State of North Carolina, wherein E. V. Webb & Co., were plaintiffs and A. Friedberg and Max Eriedberg copartners, trading as A. Eriedberg & Bro., were defendants, was of no legal effect and insufficient to attach the tobacco mentioned and described by the negotiable warehouse receipts hereinafter mentioned by reason of the fact that the said receipts are negotiable receipts and the merchandise described therein cannot be attached or levied upon unless the receipts themselves are attached and levied upon by the sheriff or the said receipts impounded by the court or their negotiation enjoined.”

We think that the concerns are warehousemen under all the facts in this ease. It matters not if it is a person or partnership. If the concern is engaged in the business and goods are stored for profit, the statute applies. It matters not if the concern stores its own and also the goods of others. The receipt issued terms itself “Warehouse receipt” and shows' on the face that the goods are stored for profit; it gives the “storage rates.” The receipts and admitted evidence shows that the concerns are warehousemen and the concerns dealt with the public as such.

The burden was admitted in the cause to be on the intervener. We think the New York judgment was properly exemplified and evidence in the cause. ’ C. S., Vol. 2, appendix III, Authentication of Records (U. S. Rev. Stat., 905, 906, 907). It showed that the “warehouse receipts” covered the tobacco in controversy, and they were owned by the Maryland Casualty Co. transferred by E. B. Ficklen Tobacco Co., Inc., and also the E. B. Ficklen Tobacco Co., Inc., attachment in North Carolina, and were held by the Maryland Casualty Company to reimburse it for amount due it of $25,000 ordered to be paid to E. B. Ficklen Tobacco Co., Inc., on its judgments when the warehouse receipts and attachments were transferred. The attached tobacco in North Carolina amounted to $9,470.81, which was in the hands of the commissioner of the court, who is a party to this action. The court below properly instructed the jury to answer the first, second and fourth issues “Yes.” The competent evidence and admission in the answers fully warranted this instruction. The main question of fact was on the third issue — “What assets had the intervener received as security in addition to the transfers sued on herein?” The evidence on this issue was conflicting. Without repeating it, we think the evidence bearing on the issue competent and sufficient to sustain the verdict and the issue* proper and material from the facts in this case. The jury answered $20,000. On this verdict, the court in its judgment “Ordered, adjudged and decreed that of the fund held by the commissioners in this action from the sale of said tobacco, the said commissioners pay unto the intervener the sum of $5,000 with interest tbereon at tbe rate of six per cent per annum, from 5 May, 1921, tbat being tbe amount so paid by tbe intervener to tbe E. B. Eick-len Tobacco Co., Inc., less tbe amount of $20,000 paid to tbe intervener by tbe defendants Eriedberg. It is further ordered, adjudged and decreed tbat tbe balance of tbe sum on band by tbe commissioners in tbis action, witb accrued interest tbereon, be paid unto tbe plaintiffs herein, and tbat tbe costs be paid by plaintiffs as such costs have accrued herein in tbe trial upon tbe interplea.”

Tbe Maryland Casualty Company, intervener, claimed tbe entire proceeds of tbe tobacco sold under tbe attachments of plaintiffs and in tbe bands of tbe commissioner, amounting to $9,470.81, to be applied on tbe E. B. Eicklen Tobacco Co., Inc., judgment obtained against it in tbe New York Court for $25,000. As security it bad tbe warehouse receipts on tbe tobacco in controversy turned over to it under court order by said Eicklen Co., Inc. Tbe jury found it bad $20,000 additional assets and tbe court below, under tbe findings of tbe jury, gave inter-vener $5,000 and interest to be taken out of tbe fund of $9,470.81 tbe commissioner bad and tbe balance paid to plaintiffs, thus paying in full intervener’s claim of $25,000.

It appears tbat in New York a summary judgment against tbe surety cannot be taken in tbe same action, as is provided in North Carolina. C. S., 3961-2-3.

We have here a judgment of another state, E. B. Ficklen Tobacco Co., Inc., v. Maryland Casualty Co., the intervener in tbis case, in the Supreme Court of New York County, duly exemplified. Tbis judgment is set forth fully in tbe record. It gives tbe findings of fact and conclusions of law and judgment of John V. McAvoy, Justice of Supreme Court. Tbis judgment transfers and assigns tbe warehouse receipts and attachments in North Carolina to tbe intervener, Maryland Casualty Co., and says tbat “the said defendant (Maryland Casualty Co.), when receiving said negotiable warehouse receipts shall be and is a bona fide bolder of said negotiable warehouse receipts in due course,” etc. Under tbe judgment E. B. Ficklen Tobacco Co., Inc., turned over to tbe Maryland Casualty Co. tbe warehouse receipts and assigned tbe North-Carolina attachments and tbe Maryland Casualty Co. paid E. B. Ficklen Tobacco Co., Inc., $25,000 and intervened in tbis case.

Article IY, sec. 1, Const, of U. S., is as follows: “Full faith and credit shall be given in each State to tbe public acts, records, and judicial proceedings of every other state. And tbe Congress may by general laws prescribe tbe manner in which such acts, records and proceedings shall be proved, and the effect thereof.” Hanley v. Donoghue, 116 U. S., 1; Thompson v. Whitman, 18 Wall., 457; Andrews v. Andrews, 188 U. S., 14; Haddock v. Haddock, 201 U. S., 562; Const. of U. S., Anno., 1923, p. 478 et seq.

“By virtue of Const., U. S., and Acts of Congress in pursuance thereof, judgments of other states are put upon the same footing as domestic judgments, they are conclusive of all questions involved in them,' except fraud in their procurement, and whether the parties were properly brought before the court.” Marsh v. R. R., 151 N. C., 160; Miller v. Leach, 95 N. C., 229.

The “warehouse receipts” were under our statute made negotiable. C. S., 4077 el seq. The judgment of the New York Court put the title to these negotiable warehouse receipts in the intervener, Maryland Casualty Co., ordered the warehouse receipts turned over by E. B. Eicklen Co., Inc., and the Maryland Casualty Co. to pay the $25,000 judgment. The judgment also transferred Eicklen’s North Carolina attachments. This was all done by the litigants.

The plaintiff in its further answer to intervener’s complaint, admit this, but claim that the E. B. Eicklen Tobacco Co., Inc., was forced in the action to transfer and assign the warehouse receipts and attachments in North Carolina to Maryland Casualty Co., but it is admitted on the record that E. B. Eicklen Tobacco Co., Inc., did make the transfer and received the $25,000. From the admission of record title was in the intervener. This fact being established, the law is clear.

C. S., 4081 is as follows:

“A person to whom a negotiable receipt has been duly negotiated acquires thereby — •
“1. Such title to the goods as the person negotiating the receipt to him had or had ability to convey to a purchaser in good faith for value, and also such title to the goods as the depositor or person to whose order the goods were to be delivered by the terms of the receipt had or had ability to convey to a purchaser in good faith for value; and
“2. The direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt as fully as if the warehouseman had contracted directly with him.”

We have given a most careful study of the entire record and able briefs of the parties. We think that substantial justice has been done from the facts in this cause and that there is in the record no prejudicial or reversible error in either the appeal of plaintiffs or intervener.

In the judgment of the court below, there is

No error.  