
    Walter H. Beebe, Respondent, v. Frederick Mead and James Voorhis, Individually, Appellants, and as Copartners Trading under the Firm Name and Style of Frederick Mead & Company, Impleaded with George H. Macy and Others, as Copartners Trading under the Firm Name and Style of Carter, Macy & Company, Appellants.
    
      Interpleader — right of a warehouseman where two conflicting orders to transfer goods are served upon him to interplead the several claimants—when his recognition and acceptance of one of such orders does not prevent his interpleading the claimants — an offer to deliver the goods to the party adjudged to be entitled thereto is sufficient— the recital in a judgment of the facts found by the trial courtis improper — an allowance to the warehouseman based on the value of the goods in storage is improper.
    
    Upon the trial of an action of interpleader, brought against Frederick Mead and James Yoorhis, individually and as copartners composing the firm of Frederick Mead & Co. and George H. Macy and others, as copartners composing the firm of Carter, Macy & Co., it appeared that" the firm of Frederick Mead & Co. stored with the plaintiff, a warehouseman, 1,000 half chests of tea; that on June 17, 1902, the plaintiff received the following order:
    “ Gentlemen.—Please transfer to the order of James Voorhis and hold subject to his order 1,000 half chests of Japan tea, marked 4^ various ships and numbers, and oblige, Very truly,
    ."FREDERICK MEAD & COMPANY;” that such order was in the handwriting of Voorhis, who for a number of years had acted as a member of the firm of Frederick Mead & Co. in his dealings with the plaintiff; that the plaintiff accepted such order in good faith and made corresponding entries in his books; that subsequently, and on the same day, there was presented to the plaintiff the following order:
    ‘‘New York, June 17, 1902.
    ‘‘Mr. W. H. Beebe:
    “ Please deliver to Messrs. Carter, Macy & Company all of mark 4s Japan, and all of mark Q Japan, 2874 half chests.
    ‘‘FREDERICK MEAD & COMPANY;”
    that Voorhis and Carter, Macy & Co., each having demanded possession of the tea under their respective orders, the plaintiff refused to deliver the tea to either of them and at once instituted the interpleader action.
    The defendant Mead interposed an answer denying that he and Voorhis were copartners, and that the firm of Frederick Mead & Co. had transferred the tea in question to Carter, Macy & Co., and that the said firm of Mead & Co. laid no claim to the tea. The defendants composing the firm of Carter, Macy & Co. interposed an answer alleging that they were the owners of the tea and that Voorhis had no interest in it. Voorhis interposed an answer alleging that he was a member of the firm of Frederick Mead"& Co., and was the owner of the tea.
    
      Reid, that the plaintiff was entitled to a judgment requiring the claimants of the tea to interplead;
    That a mere bailee, who makes no claim to the property in his possession and who acts in good faith in relation thereto and with reasonable care and prudence, should be protected from rival claimants of the property, and should not be compelled to determine the validity of their several claims when a wrong determination would involve serious consequences to him;
    That the plaintiff was not prevented from maintaining the action of interpleader. by the fact that he had recognized and accepted the order transferring the tea to Voorhis, there being no claim or suggestion that Voorhis had parted with anything in reliance upon the recognition of his title by the plaintiff,' or that any condition existed which would estop the plaintiff from questioning the validity of such order.
    That the offer of the plaintiff to deliver the tea to the defendant who should be adjudged to be the owner thereof was sufficient to entitle the plaintiff to maintain the action, and that he was not obliged to produce the tea in court or to deposit it with the clerk;
    
      That a recital in the judgmént of the facts found by the court was improper and should be stricken therefrom;
    That, as the title to the tea was not involved in the determination of any claim presented by the plaintiff, an extra allowance to the plaintiff 'of five per cent upon the value of the tea was not justified, there being no basis upon which an allowance could be predicated.
    Separate appeals by the defendants, Frederick Mead and others, from portions of a judgment Of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of April, 1904, upon the decision of the court rendered after a trial at the New York Special Term. •
    
      Charles H. Knóx, for the appellant James Voorhis.
    
      William R. Barbour, for the appellants Carter, Macy & Company and Frederick Mead. -
    
      James O. Clark, for the respondent.
   Ingraham, J.:

This was an action of interpleader by which the plaintiff, who was a warehouseman, asked that the defendants be required to inter-plead and settle their rights to 1,000 half chests of tea, which'.were on storage in the plaintiff’s warehouse, and that upon delivering the said tea to such person or persons as the court/should direct, the plaintiff be discharged from all liability to either qf the defendants. The complaint alleges that the' defendants Mead and Yoorhis'were' copartners. The defendants interposed separate answers, the defendant Mead denying that he and Yoorhis were copartners, and alleging that the firm. of Frederick Mead & Co. transferred . the teas on storage with the plaintiff, consisting of about 2,500 half chests, and which included the 1,000 half chests involved in this controversy, to the defendants Carter, Macy & Co.; that the firm of Mead & Co. does not make any claim to the teas referred to in the complaint, but that the same are, and ever since the 14th day of June, 1902, have been, the property of Carter, Macy .& Co. The defendants Carter, Macy & Go. allege that they are the owners of the tea and entitled to the same, and that Yoorhis has no interest in it, and demand judgment that the 1,000 half chests of tea mentioned in the ■ complaint be adjudged to be and to have been since the 14th of June, 1902, the .property of Carter, Macy & Co., and that the same be delivered to the said Carter, Macy & Co. The answer of the defendant Yoorhis alleges that he ivas a member of the firm of Mead & Co.; that he is the owner of the 1,000 half chests of tea; that on the 17th day of June, 1902, the said teas had been transferred to and were then his property, and Yoorhis demands judgment that the complaint be dismissed as to him and declaring him to be the owner of the 1,000 half chests of teas above mentioned, and ordering the delivery of said 1,000 half chests of teas ” by the plaintiff. ■

It is not disputed but that these teas were stored with the plaintiff as a warehouseman by the firm of Frederick Mead & Co., It appeared that on the morning of the i7th day of June, 1902, the plaintiff received an order as'follows:

“Gentlemen.—Please transfer to the order of James Yoorhis and hold subject to his order 1,000 half chests of Japan tea, marked ¿Jh various ships and numbers, and oblige,
“Yery truly,
“ FREDERICK MEAD & COMPANY.”

That such order was in the handwriting of Yoorhis, and that •the plaintiff had/for many years transacted business with the firm of • Frederick Mead & Co., and that during that time Yoorhis had acted as a member of the firm in his dealings with the plaintiff; that the plaintiff accepted this order in good faith and made entries in his •books correspondingly ; that subsequently and on the same day there was presented to the plaintiff the following order:

“ New Y ark, June 17, 1902.
Mr. W. H. Beebe :
“ Please deliver to Messrs. Carter, Macy & Company all of mark ,É\ Japan, and all of mark zñx Japan, 2874 half chests.
“FREDERICK MEAD & COMPANY.”

And that Carter, Macy & Co. demanded the delivery of the teas under this order. Yoorhis and Carter, Macy & Co. each demanded possession of the teas, and the plaintiff, in consequence of both parties claiming them, refused to deliver to either and at once instituted this suit. There is no allegation or. suspicion of any collusion between the plaintiff and either Yoorhis or Carter, Macy & Co., and upon the trial, as upon this appeal, both Yoorhis and Carter, Macy & Co. claimed to be the owners of the 1,000 half chests of teas and entitled to the delivery thereof, and both' here claim that their title to the teas was established by the evidence before the court, and for that reason the plaintiff has no right to maintain this action for an. interpleader. ■ > ■

The position of the plaintiff on the 17th day of June, 1902, when the second order directing the deliveiy of the teas to Carter, Macy & Co. was delivered to him, was that two parties claimed this 1,000-lialf chests of tea under orders purporting fcxbe given by Frederick Mead & Go., who were the. undisputed owners of the teas and who had stored them with the plaintiff. Both Yoorhis and Carter, Macy & Co. could have demanded the teas and upon refusal commenced an action for conversion. The plaintiff had not the means of ascertaining which of these conflicting claims was valid and Which of the claimants was the actual owner of the teas. If he had delivered the teas to the one not entitled to their possession, he= would have been liable to the true owner for the value of the teas. If he had refused to deliver to either until their claims were settled,, he would have been liable to one of the‘claimants for the value of the teas and possibly to both. By the position in which he was. placed, through no fault of his, he was required to adjudicate as. between these rival claimants as to which was entitled to the teas„ without the means of ascertaining the exact facts in- relation to. them, with no power to compel either party to submit to him their-evidence of title further than the orders that had been delivered,, and with no possibility of saving himself from an expensive. litigation which, because of his inability to procure the evidence of th& title of the respective owners of the tea, might have resulted in a. double liability. ■ The position now taken by the respective claimants is itself evidence that two parties claimed title to the .property ,k and, it seems to me, justified the bringing of this action. A mere bailee, making no claim to the property in his possession, having acted in good faith in relation to it and with reasonable care and prudence, should certainly be protected from rival claimants and not be compelled to determine the validity of their several claims when a wrong determination would involve such serious consequences. “The law did not place so great a responsibility upon him, but provided him with a remedy to protect himself against the double liability, or, to speak more accurately, against a double vexation on account of one liability.” (Crane v. McDonald, 118 N. Y. 648.)

Reliance is placed upon the fact that the plaintiff recognized the transfer of the 1,000 half chests of tea to Yoorhis, and is thus estopped from disputing Yoorhis’ title, but the order purported to-be a transfer of the tea by the firm to one of its members. It placed the legal title upon the books of the plaintiff in an individual member of the firm instead of in the firm. If, as is claimed by Carter, Macy & Co. and Mead, Yoorhis was not a member of the firm, this transfer was wholly ineffectual to pass the title to the property, and the question as to whether Yoorhis was a member of the firm ivas one of the questions upon which the title to the 1,000 half chests of teas was to be determined. The mere receipt and recognition of this order by the plaintiff would not he controlling upon the plaintiff in favor of Yoorhis, unless in some way the plaintiff was estopped from questioning it. Yoorhis was not a purchaser of the property in good faith and for value. There is no claim or suggestion that he parted with anything relying upon- the recognition by the plaintiff of his title, or that any condition existed that Avould estop the plaintiff from questioning the validity of this order. The acceptance of such an order does not affect the right of the bailee to this relief. (Atkinson v. Manks, 1 Cow. 691; approved in Crane v. McDonald, supra.)

Whether or not the evidence introduced on the trial Avas sufficient to justify a determination by the court of the OAvnership of-these 1,000 half chests of tea is not presented upon this appeal, as there was no adjudication that the tea was the property of either. There is no evidence that these respective answers were served upon the other defendants, so that either party could demand that the court should in this action adjudicate as to the rights of the respective defendants as against each other. Mor did either of the defendants make such a claim upon the trial. The offer of the plaintiff to deliver the tea to the defendant who should be adjudged to be its owner was a sufficient allegation to sustain the action of inter-pleader. Certainly, a plaintiff should not be compelled to produce 1,000 chests of tea. in court, or to deposit them with "the clerk. He held it as warehouseman^ subject to the judgment of the court, and when, by the consent of all the parties, the tea was sold and the proceeds deposited in court to await the final determination of the action, there could be no claim that the allegations of the complaint as to the disposition of the property in question was insufficient to justify granting the plaintiff the relief that he asked. It' was suggested on the argument that the proper course for the plaintiff was to wait until he was sued and then interplead, but if either of these claimants had commenced an action for conversion, the claim then against the defendant would be a personal claim for a sum of money, and not for the possession of the prop- • e'rty, and it would be- too late for him to interplead. I think that upon the conceded facts and the answers of the respective defendants the plaintiff was entitled to a.judgment requiring the claimants', of this tea to interplead. .

At the end of the trial the court found the facts and conclusions ' of law separately. The judgment entered thereon contains a recital of the.various facts found. This was improper. The judgment should contain nothing but a statement that the court has made its" findings of fact and conclusions bf law, and then decree the relief to which the plaintiff was entitled. All of these recital's should, therefore, be stricken from the judgment. As this practice has become common, it is proper that we should call attention to its impropriety.

There was also- awarded to the plaintiff an allowance of five per cent upon the value of the teas. We think this allowance was unjustified.- The cause of action was the right of the plaintiff to compel these defendants to interplead as' to this property. The plaintiff made no claim to the property, and the title to the property ■ was not involved in .the determination of any claim presented by the plaintiff. As upon the pleadings the plaintiff Was'entitled to a judgment requiring the several claimants to this property to inter-plead, and as no other relief was' given by the judgment, the value of the property itself was not involved, and there was nq basis upon which an allowance could be predicated.

It follows that the judgment should be modified by striking out the recitals of the facts -found and the allowance, and the judgment appealed from, modified as herein directed, should be affirmed, but without costs of this appeal.

.Yah Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs. '  