
    Carrie Kramer, Respondent, v. The Haeger Storage Warehouse Company, Appellant.
    First Department,
    January 10, 1908.
    Bailment — delivery of warehouse, receipt as security for loan — conversion — deliveryby wareKouseman tó píédgéó —"negligence" of "bailor—failure' to - show- value: of-- goods ' -converted — trial —.striking • out. ,.-irresponsive answer.;. : ' ■; ,-;.,y.-" ■. ■:-"¡y.y..;'--'. "Á
    When the. holder-of a ' no'nmegotiahle "warehouse receipt‘delivers "thé'samé tó a-"third person as. security for" a- loan; together-with"a receipt for "the- money", ; stating .that the.lo.an was made ón the'.goods,, which-receipt, .drawn .in .the. ■ bandwriting.of the lender, is.signgcbby the' horrg'wer so .that,the, lencler can: insert before the signature a statement that the goods were subject to his order,.the warehouseman is not liable .as,ípr" á conversion in delivering the goods, in good faith, to the lender on the "presentation of the" "two receipts by him,"' - whether or-no he inserted: the "statement -that the' -goods were subject to his order-without authority. .- . ■ y ; p, .".A
    Moreover,, eyen .thongh,tb,e statement that the, goods were subject, tp^he lender’s - order was not in the." receipt as, originally,signed, and although- the'.warehoiise ' - receipt was not" negotiable, a" délivéry of "the"latter to" the lendér,." évéii 'without' indorsement, is a delivery of " the goods-as- security for- the loan";- sufficient- to • raise a question, for. the jury as to whether the .Owner .hadmot. relinquished -her " interest in the. goods until- the loan was p1aid,: So-that the-lender "w.as-.entitled ¡to p.ossessiop on, thebp^rpw.er'S; default., - ......" „ .. . - • ;......
    While a bailee may. not ordinarily .set up, the rights óf.á tliircl person against his bailor when sued for" conversion, the right 'of a third'pfersbn'to wiioni the" bailee ' -has delivered the property may be considered as a defense.
    Evidence; examined and 'held,, that, a- judgment, fpr, the plaintiff ¡should bergyersed- - • .for.failure to.p,rove the-value of.the,g.opdsalleged' to haye.been..co.nye.rted..^ ....
    Any party-Jo an action.is .entitled to ha ye an irresponsive answerstricken o^t, np. matter by whom the question was propounded, ! .
    
      •Appeal by the defendant,. The Haeger Storage "Warehouse Company, from a judgment of the Supreme Court in favor of the-plaintiff, entered in the office of tlié clerk' of the county" of-New York on the 15th day of May, 1907, upon the verdict "of a jury, ánd also from an order entered in "said clerk’s office on the 15th" day of May, 1907, denying the' defendant’s 'Motion for a "new trial made upon the minutes.-
    
      Charles D. O' Connell, for the appellant.
    
      Edward Wells, Jr., for the respondent.
   McLaughlin, J.:

In May, 1904, the plaintiff stored in the defendant’s warehouse certain household goods ahd received therefor a warehouse receipt which was marked “not negotiable.” In October following she applied to one Maxwell, who was the proprietor of the Standard Storage Warehouse, for a loan upon such goods, and on the tenth of that month he-loaned her$200 for one week-—she delivering to him as collateral security for the payment thereof the warehouse receipt- and also a recéipt to the effect that she had received $220 as a loan on the goods. The plaintiff did not"repay the loan at the time agreed and sometime between the eighteenth and twenty-first of October Maxwell removed the goods to his own warehouse-presenting to.the defendant its warehouse receipt and also the receipt signed by the plaintiff, which, in the form presented, stated that the plaintiff had received $220 as a loan upon the goods stored in the defendant’s warehouse and hereby made subject to the order of Charles M. Maxwell.” On the twenty-seventh of October the plaintiff went to the defendant’s warehouse to arrange for the removal of the goods and was then informed that upon her order they had been delivered to Maxwell. She denied that she had given such order. In April, 1905, the goods, or substantially all of them, were sold at public, auction for $596, and at the trial the auctioneer testified that this was-their fair and reasonable value. In February, 1906, this action was brought to recover the value of the goods upon, the ground that the defendant, by delivering them to Maxwell, was liable for a conversion. The jury rendered a verdict in: her favor, for-the sum of $3,500, and from the 'judgment entered thereon and an order denying a motion for a new trial this appeal is taken.

The warehouse receipt given by the defendant to the plaintiff was in form non-negotiable. One of its conditions was — “ present this warehouse receipt and a written order when any goods are to be withdrawn. Goods will be delivered-only upon receipt of a written order signed by the person in whose name they are stored.” The plaintiff testified that when she applied to Maxwell for the loan he demanded that the goods be stored in his warehouse and that she declined to consent to such removal; that when she signed the • receipt for the loan which he had written out, the words “.and ' hereby made subject to the order of Charles M: .Maxwell” were not incorporated therein ; and that thereafter she refused, on different occasions, to give him a written order for the removal of the goods to his .warehouse. A handwriting expert testified that the words above quoted were -written some time after the body of the receipt was written, though he, of course, .was. unable to state . whether such words were written- before .or after the .receipt was signed. Maxwell testified that he wrote the whole of the receipt,, except the signature, at the same time, but he subsequently admitted that, the disputed words were written somewhat later ;than the other words were; but both he and the witness Ryan, who -was present at. the time, testified that the disputed words were written in the receipt before the plaintiff affixed her signature. •

If it be assumed that the disputed words were written, in the. receipt after the plaintiff had signed and delivered it to Maxwell, then it must also be assuméd that she left a blank space between her signature and the body of the receipt, which was in Maxwell’s handwriting, sufficient to enable -him to incorporate such words therein. She delivered to him the warehouse receipt, according to her own testimony, as collateral security for' the payment of the loan, and he then asked her for an order, directing, the removal to his warehouse. By leaving this space in the body of the receipt, he was enabled to incorporate the disputed words and present to the defendant not only its warehouse receipt, btit also what purported to be a written Order for. the delivery of the goods. • When this receipt was presented there was no way in which the defendant, in the ordinary course of business, could have determined that the; dis-

puted words were not in the receipt when she signed it, and it was, therefore, justified in acting upon it. The receipt for the money and the order for the delivery of the goods were all in the same handwriting and it is conceded the same was signed by the plaintiff. Under such circumstances the defendant was justified in acting upon the order and delivering the goods to Maxwell. (Timbel v. Garfield National Bank, 121 App. Div. 870.) The defendant was an innocent third party and if a fraud were perpetrated it was by reason of the negligence of the plaintiff, and any loss resulting therefrom ought to be borne by her instead 'of a party who relied upon the receipt signed by her.

But aside from this the plaintiff was not entitled to recover. A fair construction of all the.evidence is to the effect that the goods were "pledged by her to Maxwell as security for the loan made by him. The fact is not disputed that he loaned to her $200 for which she signed a receipt stating that the loan was made upon the goods in question and she at the same time delivered to him her warej house receipt. To constitute a valid pledge of personal property there must be a delivery of the thing pledged to the pledgee, but what will amount to a delivery depends upon the circumstances of each particular case. (Clark v. Costello, 79 Hun, 588.) The delivery of a bill of lading, though without indorsement, has been held a delivery of the property described therein. (City Bank v. R., W. & O. R. R. Co., 44 N. Y. 136; Merchants’ Bank v. U. R. R. & T. Co., 69 id. 373.)

What the court said in disposing of the case last cited, with reference to an intent to pass title, is especially applicable here. “ It cannot be doubted that the very purpose in view was to pass the title as no other way was provided for the payment of plaintiff’s advances. * * * At most the intent here was a question of fact, a * *” Therefore, if it be conceded that the disputed words were not in the receipt when it was signed and delivered, and that the warehouse receipt issued by the plaintiff was non-negotiable, it nevertheless could not be held as a matter of law that in view of all the circumstances there was not a sufficient delivery of the goods to constitute a pledge and give to Maxwell the right of possession, at least when the loan was not repaid. It, therefore, seems to me the court erred in refusing to charge the jury as requested that “Tf .they "believe ■ that bnOctóhér v;l 0 th, when Mrs: lí raiñer j ■'the plaintiff, received'this $200 from Mr. Maxwell'and delivered to'him the original waréhoú'se''receipt, 'with W receipt'-'fbr the rtion'dy; that it wás h:er;ihtóntron"tIien 'tb'''pledge;thesé'g'Ó'óds,-'tha't the’plaiutiff'is not entitled-to recover.”' The plaintiff’s réfús’ál,"according to her 'own test,itn'oriy,lto-gi!vé''a writtéh-order fbr theremovahtif the goods,'was 'bh account of 'the'-damage ' they 'would sustain^ -‘and itithls-coiindctibn it' is ‘quite‘sigüificanfá's bearing .upon !thé "inténtión 'of "the parties that She admitted that Maxwell dbhi'aú'déd possession of the wáréhbuse récóiptj-ánd’th'át sM:'i3íéü'^etbd‘tiié'':saÍhé'io':hiih-' fbr ’the-purpose of securing'the loan.- :The legal efféct df thé‘'trah'shc'tio'h"''wás t'o pledge' the^goóds as'se'cufity for the'loan, and'if tiiis'bé true,then é vén' thoügh' an1 br’d’ér1 was’ndt given ‘for "' their' ‘ delivery,: if did hot fdilów'ás the Cóúrt s'eemé'd''t'ó lntl'icáte‘inits Charge,'that ithe'pMiitiff was®entitled tbréCovér.' While.'a-'bailee ihay nbt' ordinarily’set up 'then’ights'tif 'á 'third'péfs'óñ against his- bláílbr'lwh‘éífsúe'd,fbr oom Vér'sióny'th’e‘right ¿fa-third person' tó wlibm:'tli'e''háileé has’delivérte’d ’the ‘prdp'érty "ihay"‘he considered 'as a ‘defense'. ‘ ‘(Western Transportation Co. v. Barber, 56 N. Y. 544.)

'Hére'th'e pláintiff, By the''delivery óf’tlié warehouse receipt'and the OthCr receipt’which She'gávej'had ’tilbthed Maxwell with ht least the indicia of title, 'arid'it'wds.'a 'question' fdr 4he jiiry,.iri‘ view of that fact", tákén in connection with'thó'othér testimony 'héarihg On the Subject, to' Say 'whether'® she- had -’not relitíquished her interest therein until such loan had been paid, to the éxté'nt"áfleast of enabling Maxwelltih her default tb'také'pdsséssibh Of'filié prdpefty. (Driggs v. Dean, 167 N. Y. 121.)

'"■Thé'judgmBtít múst'also'Be'fevér'se'd'becáit’se filie ‘plaiiítiff 'fail‘éJd to establish'by .S'átíáfáéto'iyevidence’the ‘ valiie 6f'the ’'goods.*" Thé auctioneer who'sbld.them'festitied'that'fliey'broiight at public alibtibn"$5§6, which WaS'their'fáir'anil réasobUBlb'"Value. The plaintiff testified‘t’liáf they' originally "cost 'inilch 'ihpre," dn'd 'that' "they' had h'ébn in úáe fin'd boar ding hbiisé'fbr sévdrdTybáfs, b'úfh'er'fiéihimdhy' as tó valúe is'vágué, indefinite ‘aÜÜ •unádtÍBfeCtdfy''‘án,d'ltb‘‘suC'h ’áíi extent that'a véf'diCt'ftir'SSyS'ÓO^fé'diCdtbd fiMerbbrijfih Viéw'o.ffivhat the'-property sold’for 'at-’public .áiictidñ, cáhnbf'Bé :p'értiiitté'd 'tó stand. "'In'ThiS 'cbnnéctióh ifm'áy'hofbe diit óf place tóÉ’‘call"attention to’ ah error‘which wfi'S' cbihmíttéd'at thé'firidl, which'irécesEt'aíbs a reversal of the judgment. During the plaintiff’s examination she was asked the following question : Q. When you made the claim in your complaint of $5,000 for damages that you allege you suffered, how was that fixed ? A. Damage—well, the damage would amount to a great deal more than that.” Defendant’s counsel thereupon moved to strike out the answer as not responsive. The motion was denied and an exception taken, the court saying: The only one who can object to an answer as being unresponsive is the one who propounds the question.” Any party to an action is entitled to have stricken out an answer which is not responsive to a question proposed, irrespective of whether he asked the question or not. This must be so, otherwise it is not difficult to imagine how damaging and incompetent testimony could be given by a dishonest or trained witness.

Upon each of the grounds named, therefore, I am of the opinion this judgment should be reversed and a new'trial ordered.

The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.

Ingraham and Clarke, JJ., concurred; Houghton, J.,. concurred on last ground only.

Patterson, P. J. (concurring):

I concur in the reversal of this judgment because of the want of satisfactory proof as to the value of the goods, and also because the court erred in refusing to charge the jury as requested by the appellant that if they believed it was the intention of the plaintiff to pledge the goods at'the time she borrowed the money from the defendant, she was not entitled to recover. I think, under the evidence in' the case and its peculiar circumstances, the defendant was entitled to this instruction.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  