
    Gibson, Stockwell & Co. v. The Chillicothe Branch of the State Bank of Ohio.
    In an action of trespass for levying upon and detaining certain property by virtue of an execution against their bailees, the plaintiffs gave in evidence a warehouse receipt of the following tenor : “ Received, Chillicothe, November 13, 1852, of Messrs. Gibson, Stockwell & Co., and for their account, the following property in good order, which we agree to hold irrevocably subject to their order, they having a lien thereon for the full cost of the same, to-wit: ” (mentioning the goods.) (Signed) “ Babtlett & May.” Held—
    1. That the legal effect of such warehouse receipt was to pass the general property and right of possession to the holder.
    3. That the legal effect of the instrument was not impaired bythe recital therein that the holder had a lien upon the property for the full cost of the same.
    
      3; That the general property and right of possession belonging to the plaintiffs, the equitable interest oí the bailees therein, did not authorize a levy upon tho property.
    4. That a levy of such a writ upon the property by direction of defendants, con stituted an unlawful seizure of the property.
    &. That the seizure and withholding possession of valuable personal property under such levy for a limited time from the owner, gave a right of action to the owner for any incidental damages.
    Error, to the district court of Ross county.
    This petition in error is to review the proceedings and judgment of the district court of Ross county, in an action of trespass on the case, at common law, for seizing and detaining a quantity of barrel and bulk pork, lard, etc.
    The plaintiffs, Gibson, Stockwell & Co., in order to prove their right of possession to the property, gave in evidence thirteen warehouse receipts, one of which was in this form:
    “ Received, Chillicothe, Nov. 13,1852, of Messrs. Gibson, Stockwell & Co., and for their account, the following property, in good order, which we agree to hold irrevocably subject to their order, they having a lien thereon for the full cost of the same, to-wit:
    ■ 176 bbls. Mess Pork, marked B. & M.
    13 “ Rump “ “ “ “
    44 “ Lard, “ “ “
    938 Shoulders in dry salt.
    Bartlett & May.”
    Another receipt was in this form :
    “ Received, Chillicothe, December 17th, 1852, of Messrs. Gibson, Stockwell & Co., and for their account, the following property in good order, which we agree to hold irrevocably subject to their order, they having a lien thereon, not only . for the full cost of the same, but also a general lien for all other liabilities incurred or to be incurred by us, to-wit:
    
      600 bbls. Mess Pork, marked B. & M.
    91 “ Rump “ “ “
    200 tierces Lard, “ “
    151 kegs “ “ “
    15 bbls. “ “ “
    184 “ head and gut Lard, “
    5860 Shoulders in bulk, in Madeira’s warehouse. 416 Sides “ “
    
    Bartlett & Mat.”
    All the receipts were in one or the ether of these forms.
    Samuel Miller, a witness whose deposition was taken by the plaintiffs, testified that he was the bookkeeper and general clerk of Bartlett & May, at Chillicothe, in the winter of 1852-1853, during the season of packirg pork; that he had access to the books and papers of the firm, and a knowledge of its daily transactions and course of business; that the warehouse receipts, thirteen in numbesr, were executed by Bartlett & May at the times of their respective dates, and as the articles mentioned in each were “ got together” for storage ; that the receipts were transmitted “ without delay,” to -Gibson, Stockwell & Co., at New York; that all the property mentioned in the receipts was seized in execution by the sheriff of Ross county, on the 4th of January, 1853, at the suit of the Chillicothe Branch Bank against Bartlett, May and Coates. That the warehouse receipt dated January 4th, 1853, had been completed, and together with a letter to the plaintiffs, enclosing it, had been copied into the letter book of Bartlett & May, at the time of the seizure ; that Gibson, Stockwell & Co., supplied the money with which the property was purchased.
    In answer to various questions propounded to him, the witness stated, that the receipts referred to, were made in order to secure Gibson, Stockwell & Co., for advances made to Bartlett & May; that he had seen the contract between Gibson, Stockwell & Co., and Bartlett & May, made in the winter of 1853-4, but not the contract of the preceding year; that he did not know whether there was a written contract for the packing season of 1852-3, and did not recollect whether there was, or was not, a writing giving the plaintiffs a lien on the property, prior to the warehouse receipts, and did not know whether Gibson, Stockwell & Co., had any interest in the property, except for the amount of their advances, and did not know that the property w-as “ particularly” to be shipped to Gibson, Stockwell & Co., but that it was to be shipped as they should direct, as the property was held subject to their order. The witness could not say whether all the receipts referred to were forwarded to the plaintiffs, and the letters inclosing them copied, as he did not mail all the letters, that Mr. Bartlett occasionally mailed the letters; that the thirteen receipts covered all the pork purchased by Bartlett & May, in the season of 1852-3, previous to the time of the levy, except the hams, and were given as a basis on which drafts were drawn; that money may have been advanced in other ways. That there was, he thinks, money advanced prior to January 4, 1853, sufficient to cover the receipt of that date. That the advances were made on receipts forwarded to Gibson, Stockwell & Co., and sometimes drawing on them in advance of the receipts. That the books show a large balance prior to January 4, 1853, in favor of Gibson, Stockwell & Co. That he (witness), did not wish to be understood as saying advances were only made upon the warehouse receipts forwarded, but that Bartlett & May drew on Gibson, Stockwell & Co., as they could negotiate their paper, with the understanding that the receipts were to be sent to them as the property was got out.
    This deposition, with the warehouse receipts constituted, as stated by the bill of exceptions, all the evidence offered by either party, in relation to the title of the plaintiffs to the property in question.
    It appeared in evidence, as shown by the record, “ that the seizure of the property, for which the action was brought, was made by the sheriff of Ross county, under the express direction and requirement of the defendant, in obedience to a writ of venditioni exponas, against Bartlett, May & Coates.”
    
      The levy was made on the 4th day of January, 1853, and released by the sheriff on the 27th day of the same month.
    The case having been argued and submitted by the counsel of the respective parties; the district court thereupon instructed the jury:
    “ That the receipts before mentioned were evidence of a special ownership only in the plaintiffs, with the right of immediate possession of the property in question, as against Bartlett & May. This the receipts, on their face, tend to prove, and no more; and they have been admitted in evidence before you, as competent evidence of that which they tend to prove. They do not, of themselves, tend to prove that the plaintiffs had a general ownership in the property; they state only that the plaintiffs had a lien on the property, and describe, in general terms, the extent of that lien. These receipts, however, while they do not, of themselves, show that the general ownership-was in the plaintiffs, neither do they, of themselves, clearly show in whom was the general ownership; at least, one set of them does not. But all the receipts are now to be considered, by you, in connection with the other evidence in the case; and taking them in connection with the other evidence in the case, applicable to the question, it is for you to determine, not where the general ownership was, but whether it was in Bartlett & May. Now, if, from the evidence, you are satisfied that, at the time of the levy, the firm of Bartlett & May owned the property in question, subject to the lien of the plaintiffs, and that the receipts were given to secure that lien only, and not as evidence of general ownership, the plaintiffs can not recover in this action; for it is a fact admitted by the parties, before you, that the receipts were not deposited under the statute of 1846, regulating chattel-mortgages, with the township clerk or county recorder. But if, on the other hand, from the receipts themselves, taken in connection with all the other evidence -in the case, showing the business relations between plaintiffs and Bartlett & May, and the circumstances under which the receipts were given, and what the parties intended them for, which evidence has been admitted, by consent of parties, for such purpose, you are satisfied that the plaintiffs were, at the time of the levy, the general owners of the property, and that Bartlett & May were their agents or bailees, having, as such, the custody of the property for the plaintiffs, the plaintiffs are entitled to recover in this action.”
    The plaintiffs excepted to this instruction; and the jury having returned a verdict for the defendant, the plaintiffs moved for a new trial upon the ground of misdirection, and because the verdict was contrary to law and the evidence.
    This motion was overruled, and the plaintiffs again excepted.
    The plaintiffs assign for error:
    1. The charge of the district court, that the receipts did not tend to prove that the plaintiffs had a general ownership in the property therein described ; but only proved a special ownership.
    2. That the court charged the jury, that if Bartlett & May were the general owners of the property mentioned in the receipts at the time of the levy, subject to a lien of the plaintiffs as therein expressed, the plaintiffs could not recover, as against the defendant, because the receipts had not been deposited with the township clerk, or county recorder, as required by statute for a chattel mortgage.
    3. That the court refused to set aside the verdict and grant a new trial.
    
      Pugh and Miller for plaintiffs in error.
    
      Thurman and Punter &; Daugherty for defendants in error.
   Sutliff, J.

It is claimed by counsel of the defendants, that while part of the record may seem to sustain the first assignment, the further instruction of the court, that all the receipts were to be considered in connection with the other evidence, should be regarded as qualifying the preceding remarks of the court in relation to the legal construction of the receipts, as separate items of evidence.

We do not regard this instruction of the court, to consider the receipts in connection with the other evidence in the case, and from the whole evidence to determine whether the general ownership was in Bartlett & May, as qualifying the proceeding instruction given as to the legal effect of the receipts. The court had already told the jury, “ that the receipts were evidence of a special ownership only, in the plaintiffs, with the right of immediate possession . . as against Bartlett & May;” and that on their face they “tend to prove no more.” There is nothing in the subsequent instructions of the court varying or qualifying this legal construction so given of the receipts. The jury were only told to take into consideration the other evidence with the evidence of the receipts, and, from all the evidence, to determine whether the general ownership was in Bartlett & May; and that if they so found, and that the receipts were given to secure the plaintiffs a lien upon the property, merely, they could not recover.

The question then arises ; was the instruction of the court given to the jury as to the legal effect of the receipts erroneous ?

Receipts of this kind are, likebills of lading, drafts, bills of exchange, etc., instruments sui generis; and such, from long and general use in commerce and trade, have come to have a well understood import among business men. All those various instruments speak a well understood language among commercial men, which ought not to be confounded, or perhaps even qualified by a strict construction of the literal and grammatical meaning of the words in which expressed. Instruments of the different kinds referred to, are frequently somewhat variant, and are still, by commercial men recognized as of the same import and validity, and so they are very properly regarded in law. The receipts in this case are in some particulars variant from each other ; and yet we have no doubt they would all be recognized by commercial men, as of like import and equal validity as warehouse receipts. And if so, they as absolutely transfer the general property of the goods and chattels therein expressed, as would a bill of sale. They are a kind of instrument extensively used by commercial men, as the most convenient mode of transfer and constructive delivery of property, and facilitating the ready realization of the price of products by the producer remote from market. Public policy, as well as respect to good faith, requires that those like other instruments of commerce, should be so regarded in courts, as not to unjustly impair confidence in them elsewhere. And this view of the legal effect of such instruments, we think fully sustained by the authorities cited by counsel; and especially by the case of Gibson v. Stevens, 8 How. Rep. 384.

Indeed we do not understand counsel to insist, that an instrument of a somewhat similar tenor to those, one strictly within the form of a warehouse receipt, might not, in its legal effect, operate to transfer the property to the holder, so as to protect it against an attachment or levy, as the property of the former owner. But it is particularly objected to such operative effect of these receipts, first, that Bartlett & May continued in the actual possession of the property; and second, that the receipts upon their face, recite the fact that the plaintiffs had a lien thereon.

The fact of. the party giving the receipts having continued in possession, if the instrument operated to transfer the legal title, the right of property, certainly could not of itself divest the holder of such title. If the writings were evidence of a delivery by the plaintiffs to Bartlett & May as bailees of the property, and an undertaking on their part to hold the same as bailees for the plaintiffs, as their property, the fact of the continuance of this relation of the respective ’parties to the property, for six months, could no more chánge their relations, than would the continuance of such relation for six days, or even six hours. There is then, no question arising beyond that of the legal import of the warehouse receipts at the time of their execution.

It only remains, therefore, to ascertain whether the effect of these warehouse receipts to vest the general property and right of possession in the plaintiffs was destroyed, or so far qualified by the concluding recital, as to change the instruments in their character. The recital, after the stipulation therein, “ to hold irrevocably subject to their order,” is in these words: they having a lien thereon for the full cost of the same.” What, then, is the obvious meaning of this recital ? It can not be reasonably understood to imply more than this — that the recital is the reason and consideration of the relation of the parties to the property being so fixed as expressed by the instrument. Nothing further, indeed, is, perhaps, claimed as the import of the recital. But it is insisted that, by giving such effect to the recital, the instrument thereby necessarily becomes a mortgage, or a mere conveyance intended to operate as a mortgage of goods and chattels, and so falls within the statute (of April 1, 1846), requiring the same to be deposited with the clerk or recorder in order to give it validity, in such a case. The language of the recital does not render logical or rational such a conclusion. In the first place, the lien is not stated to be for a definite sum of money, and, as usual in mortgages, a sum less than the value of the property; and, again, it is to be remarked that the lien is expressed to be for the full cost of the property, etc. One of two conclusions would seem, therefore, more naturally inferable from these recitals : either that the property had been purchased and procured by the money of the plaintiffs, and so the legal title was passed to them in accordance with their equitable rights; or that the plaintiffs, being the owners, were to retain the general ownership until their bailees should pay them the full cost, or agreed purchase price of the same.

There is, then, nothing in the recitals contained in these receipts, that Gibson, Stockwell & Co. had a lien thereon for the full cost of the same,” etc., inconsistent with the agreement of the receiptors to hold the property as bailees; nor in the least impairing the effect of the instruments as warehouse receipts.

. But it is insisted that the deposition of Miller makes it evident that the receipts were given merely as security; and that the deposition with the receipts clearly shows their execution to have been, intended only to operate as a mortgage to secure the claim of the plaintiffs for advancements. We do not so understand the proof. The deposition shows clearly that it was not to secure an existing indebtedness merely, that the warehouse receipts were given; but on the contrary, that the plaintiffs, under a previous and subsisting contract, furnished and advanced the money for the purchase of the property upon an agreement on the part of Bartlett & May to so pass to them the title thereto, and to allow them to rt • ceive from the sale thereof, their advancements and commission ; and that the warehouse receipts were executed in good faith, in pursuance of the contract. It is not presumable that the plaintiffs advanced their money, with the incidental risk, to purchase and procure the property prepared for shipment at a distant and remote point from market, and there took a consignment of it, holding the general property — not for carrying out the contemplated operation, but merely to secure the reimbursement of their money, and a safe abandonment of their enterprise. Such a construction of these instruments would not only be inconsistent with their generally received acceptation among commercial men, and inconsistent with their language, but from the history of the transaction, as shown by the proof, it would be to annul the actual contract, and defeat the bona fide executed agreement, and transactions of the parties.

We think, therefore, the court erred in its instructions to the jury, that the warehouse receipts did not “tend to prove that the plaintiffs had a general ownership in the property.”

Again, it is urged in argument, that, as the proof tended to show that Bartlett and May had an interest in the property, other than that of bailees, the levy might be justified as a levy upon their interest, notwithstanding the general property in the chattels, and the right of possesion belonged to the plaintiffs. And in support of the proposition, we are referred to the case of Wheeler and others v. M'Farland, 10 Wend. Rep., 318. But we do not recognize any authority in that case for the proposition. That was a case where the general property was in the judgment defendant, subject to a lien in favor of the party holding possession. If, in this case, the execution had been against the plaintiffs, and the bailees, Bartlett & May, had asserted a special lien for warehouse charges upon the property as an objection to the levy upon the interest of the general owners, or to a levy and sale subject to such lien, that case would be in point to answer such an objection to such a levy. But it by no means follows, that from the fact that the goods and chattels in which the judgment defendant has the general property subject to existing liens, may be-levied upon to satisfy such judgment, that, therefore, goods and chattels in which he has not the general property, but only an equitable interest in, or a lien upon, can also be seized in execution for the satisfaction of such judgment. But in the case before us, Bartlett & May had not even a lien or special property in the goods, which authorized them to hold possession of the goods as against the plaintiffs; their interest was only an equitable and contingent one, and in nowise subject to a levy.

It is also claimed by defendants in error, that even admitting the levy to have been made without authority, inasmuch as the return of the sheriff states the levy to have been made-upon “the interest, right and claim” of Bartlett & May in the goods and chattels merely, and as the goods and chattels were not actually removed by the sheriff, the record does not show any right of action thereby arising to the plaintiffs. It is true the return of the sheriff recites the levy to have been made upon the interest, right and claim of' Bartlett & May in the property; and the return also recites that after so having levied on the 4th of January, that on the 27th of the same month "the levy on the personal property” was released. But apart from the sheriff’s return of the release of “ the levy on the personal property,” the proof is that the levy was made-in the usual form, by the sheriff’s going, to the property and, in the usual manner of making a levy, asserting, by his conduct, such a seizure, as consistent with the idea of asserting a right of possession, and thus reducing the chattels to the dominion of the law. The chattels were evidently by the sheriff regarded from the time of the levy until its release, as in his possession. And as this claim of dominion on the part of the sheriff, with the power to exercise it, amounted, in law, to such a seizure as constitutes a levy, we think the seizure of the personal property itself by force of the levy on the part of the defendants, they having directed the levy, is fairly shown by the record.

And there is nothing in the record to show that the usual force and effect of a levy upon chattels did not obtain in this case. After the seizure by the sheriff until the release of his levy, the property remained, in contemplation of law, as absolutely in the possession of the sheriff, as it would have done, if being susceptible of convenient removal it had been actually removed by him at the time of so making the levy.

The plaintiffs, therefore, having the general property in the goods, and the right of possession, it follows that this seizure and holding of the property by the defendants from the plaintiffs, was to their prejudice. It was utterly depriving them of their property for that length of time. The property is shown to have been of value. If the deprivation had been permanent and total, the plaintiffs, holding the general property, would have been entitled to recover for its full value; and the deprivation being shown only for a limited time, and so only partial, the plaintiffs were entitled to recover accordingly, a just compensation for such deprivation. The Avrongful taking of the plaintiffs’ property constituted the gist of their cause of action; and its subsequent return might properly be regarded in mitigation of damages. It is true that the proof does not show, definitely, any particular amount of damages sustained by the plaintiffs; but the evidence doen tend to show a right of recovery in the plaintiffs.

The judgment of the district court must therefore be rr ■ versed, and the cause remanded for further proceedings.

Judgment accordingly.

Brinkerhoee, C.J., and Scott, Peck and Gholson, J7 .concurred.  