
    Robert J. Dean et al., Appl’ts, v. Marshall S. Driggs, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    1. Warehousemen—When liable in a civil suit for giving a false warehouse RECEIPT—Laws 1858, CHAP. 326—Laws 1866, CHAP 440.
    In a civil action for damages brought under Laws 1858, chapter 326, section 7, as amended by Laws 1866, chapter 440, against a warehouseman for having issued certain warehouse receipts which were untruthful and a violation of section 1 of said acts. Meld, that the right of action depends not upon the willful violation of the law, but only on the circumstance that it has been violated to the injury or damage of an aggrieved party.
    2. Same—What proof will justify a recovery of damages by the person RECEIVING THE RECEIPTS.
    It is not necessary to prove that the defendant had willfully violated the provisions of the act, but only that he had in fact violated them.
    3. Same—Party not required to take and sell the property before BRINGING HIS ACTION.
    The plaintiffs were not required to take and sell the property before bringing the action, but were entitled to recover the damages sustained by them on proving that the property was of no value over and above the charges of the defendant for keeping it in store, and that the person in whose name the receipts were issued was insolvent.
    Appeal from a judgment entered upon the dismissal of the plaintiff’s complaint.
    
      Charles Blandy, for app’lt; John Berry, for resp’t.
   Daniels, J.

The defendant on the 28th of March, 1885, issued two warehouse receipts for Portland cement, each being, except as to the amount and the vessels from which it was received, in the same form. By the receipt for the larger amount of 1,500 barrels, it was stated as follows :

“M. g. Driggs & Co.’s Warehouses, ) New York, March 28, 1885. )
Received.from Max Van Angern, ex Grimaldo, in store No. 278-80 South street, to be held by us on storage, and to be delivered to his order on return of this receipt, and payment of storage and charges fifteen hundred barrels Portland cement.
Storage per month
Labor . M. S. DRIGGS & CO.”

This receipts were deposited as security with the Chemical National Bank, for a note made by Max Von Angern, the person named in them, for the sum of $3,500. The plaintiffs guaranteed the payment of the note upon the transfer to them, or either of them, of the note itself, and all the right, title and interest of the bank in and to the collateral securities specified or referred to therein, if reguested at the time of such payment. The note was not paid at its maturity, and the plaintiffs at the request of the bank made payment of it and received the warehouse receipts.

The evidence given at the time, as it was obtained from at least two of the witnesses, was that the article they found in store and which they examined upon the defendant’s premises was not Portland cement. That, in the trade, included cement having the quality of setting or hardening, under water. Other evidence was given indicating that it might onlyy or partly, have been cement of this description which had become hardened and useless by reason of its exposure to water or moisture. The court, however, deeming the evidence to be insufficient to allow the plaintiff to maintain the action, at the close of their cases dismissed the suit, and to that direction an exception was taken. Whether this direction was warranted by the law, must mainly, if not wholly, depend upon the construction which should be placed upon chapter 326, of the Laws of 1858, as that has been amended by chapter 440, of the Laws of 1866. For if the case upon so much of the evidence as tended to prove that the article received and held in store by the defendant was not Portland cement, was such as to entitle the jury to find that fact in the plaintiff’s favor, then the receipts issued by the defendant were untruthful and a violation of the first section of those acts.

By that action it has been declared that no warehouseman, wharfinger, public or private inspector, or custodian of property, or other person shall issue any receipt, acceptance of an order, or other voucher, for or upon any goods, wares, merchandise, provisions, grain, flour or other produce or commodity, to any person or persons purporting to be the owner or owners thereof, or entitled or claiming to receive the same unless such goods, wares, merchandise, provisions, grain, flour, or other commodity, shall have been actually received into the store or upon the premises of such warehouseman, wharfinger, inspector, custodian or other person, and shall be in store or on the said premises as aforesaid, and under his control at the time of issuing such receipt, acceptance or voucher.

And if this article was not Portland cement, then the defendant did issue warehouse receipts in violation of this section of the statute. For it has been expressly declared by it, that no such receipts should be issued, unless the goods, wares, etc., shall have been- actually received into the store, or upon the premises, of the person issuing it. The law has therefore placed upon the person issuing /the receipt the responsibility of having the property upon his premises, or in his possession as a warehouseman, before it will permit the receipt to be issued. And if the defendant did not have the property mentioned in the receipts, in this manner, at the time, he violated this section of the act in making and delivering the receipts. And by section 6 of the same act it has been further provided that the receipts may be transferred by endorsement, and any person receiving such a transfer of them shall be deemed and taken to be the owner of the goods, wares and merchandise therein specified, etc.

By section 7 of the same act it has been further declared that any warehouseman, wharfinger, inspector, custodian or other person who shall willfully violate any of the foregoing provisions of the said act as hereby amended shall be deemed guilty of a misdemeanor, and upon indictment and conviction shall be fined in any sum not exceeding $1,000, or imprisonment not exceeding one year, or by both such fine and imprisonment, and all and every person or persons aggrieved by the violation of any of the provisions of said act, as hereinbefore mentioned, may have and maintain an action at law against the person or persons violating any of the provisions of said act as hereby amended, to recover all damages, immediate or consequential, which he or they may have sustained by reason of any such violation, as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted, as herein-before mentioned, or not.

And it is under the latter branch of this section that the plaintiff’s have mainly derived their right to maintain this action against the defendant. But in answer to that position it has been objected in his behalf, that this section imposed no liability upon him unless he willfully violated the first section of the act of 1858, as it was amended in 1866. That objection has been placed upon the first part of the section making it a misdemeanor, punishable by fine and imprisonment for any warehouseman, wharfinger, etc., to wilfully violate the preceding provisions of the law. But after completing the enactment declaratory of the offence, it has then proceeded to declare that every person aggrieved by the violation of any of its provisions, may have and maintain an action against the person or persons violating them, to recover all damages, immediate or consequential sustained by such violation.

This part of the act creating a right of action is separate and distinct from that which is declaratory of the criminal offenses.

The former could not on general principles very well be committed without intentional wrong on the part of the person accused, and for that reason a willful violation of the act was made a necessary attribute of the crime, while that could not be a necessary or essential circumstance for the creation of a mere civil liability for damages. If the element of a willful violation should be held to be necessary to a right of action for damages, then the preceding pro-' visions of the law would in the large majority of cases be wholly nugatory.

The language in which they have been framed justified no such supposition, as that the legislature intended there should be a willful violation in order to create a liability under these sections of the act. They are on the contrary severally complete and intelligently expressed by themselves, and they have as distinctly prohibited the acts which they were intended to prevent as that could very well be done by the use of language.

In each of the prohibitory sections preceding section 1, it has been clearly declared what shall not be done, and by the first section, which includes these receipts, issuing them for Portland cement, never received by the defendant, was--distinctly forbidden. That violated the provisions of the section, and by the latter branch of section 1, whenever such a violation shall take place there, the party aggrieved has been vested with the right of action for the recovery of his damages. Two classes of cases are very clearly contemplated—one criminal and the other civil; and to create a ground of action for damages, all that has been prescribed is that the preceding provisions of the act shall have been violated to the injury or damage of the person complaining; of it. The section is clearly divisible, in no manner subjecting the right of action for damages to the wilful violation of the law, but making it dependent only on the circumstance that it shall have been violated to the injury or damage of an aggrieved party.

The object of the acts was to correct irregularities which had arisen in the course of this business, and to prevent warehouse receipts from being issued until the property mentioned in them reached the possession of the party issuing the receipts.

To some extent at least a different practice had prevailed, in the business and persons relying upon and dealing in those receipts were liable to be subjected to losses by reason of their inability afterwards to obtain the property. What-the legislature designed by these laws was the abrogation of that practice, and to render it certain that when warehouse receipts were issued, the property mentioned in them should previously be placed in the custody of' the warehouseman. If he could only be made liable in. damages for willfully issuing an untruthful receipt, then there was no necessity, whatever, for this legislation, for which a liability would plainly exist without it.

Even the law as it previously existed was more provident of the rights of the person purchasing or loaning money on the faith of such receipts, if the right of action must depend upon a willful violation of the statute, for it would not permit the party making them against such dealers to protect himself by asserting that the property itself had never come to hand. Mayer v. Peck, 28 N. Y., 590, 598-9; Armour v Michigan Central Railroad Co., 65 id., 111; Van Santen v. Standard Oil Co., 81 id., 171.

It was to make the law still more complete and effectual than it was previously understood to be, that these statutes were enacted, and it will wholly deprive them of this effect, to so construe them as to supply redress under their provisions only when the restraints of the law should be willfully violated. In all civil cases such a construction would render these laws practically of no effect.

Dealers in this class of securities would be much worse off in relying upon their provisions, if they should be so construed, than they were under the rules previously administered and enforced by the courts. Such legislation so far as indemnity to injured or defrauded parties might be included, would be entirely useless. And it is not to be presumed that the legislature would submit to the farce of their enactment, when by their own declaration they rendered the preceding provisions of the law of no effect in the way of redressing private wrongs.

The cases of Yenni v. McNamee (45 N. Y., 614), and Insurance Company v. Kiger (103 U. S., 352), sustain no such construction of the statutes, as will exempt the defendant' from liability. In neither of them did this question either incidentally or directly arise.

The first was held not to be within their provisions while the second proceeded upon the controlling fact that the property itself which had been continued in the receipt belonged to a third person and was taken out of the posses - sion of the warehouseman by legal proceedings. They can have no weight or effect in the decision of this case. For as it was proved in part, at least, the law was violated by the issuing of these receipts, as in fact the defendant at the time did not have the Portland cement mentioned in them, in his possession, or upon his premises, and a liability was created against him in the plaintiff’s favor, if the jury should be satisfied that this was the truth of the case.

The statute has not made the plaintiff’s right of action dependent upon their first taking and selling the property. The proof was that it was of no value over and above the charges of the defendant for keeping it in store, and the person in whose name the receipts were issued was issued proven to be insolvent. If the plaintiffs can maintain the action, no difficulty therefore stands in the way of proof being given substantiating their damages, and all that the law requires to create a right of action is, that the receipts shall have been falsely issued and the persons dealing with them, upon the faith of their truth, shall have been injured and sustained loss.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Brady, J.

I agree to the reversal of the judgment herein upon the ground that there was some evidence tending to prove that the receipt was false in stating that Portland cement had been received, the article received not being such in fact. The testimony is subject, to criticism, but, nevertheless, it was, I think, sufficient to go to the jury. _  