Bank of British Columbia v. Marshall

Citation11 F. 19
PartiesBANK OF BRITISH COLUMBIA v. MARSHALL and others.
Decision Date21 March 1882
CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)

W. H Effinger and Joseph N. Dolph, for plaintiff.

H. Y Thompson and George H. Williams, for defendants.

DEADY D.J.

On September 27, 1880, the plaintiff was a foreign corporation doing a banking business at Portland, Oregon, and the defendants George Marshall and J. M. Ten Bosch, as George Marshall & Co., were engaged in the business of buying and selling wheat at the same place. They usually purchased wheat from the dealers and producers in the interior of the state and shipped it in sack by boat and rail to Portland, where they stored it in the warehouses on the river front until disposed of for shipment abroad. When so disposed of, the vessels carrying the grain were usually loaded directly from the warehouse.

On that day, the defendants being desirous of procuring money from time to time to be used in their business during the wheat season, and the plaintiff being also desirous of furnishing the same, the parties came to an understanding, in pursuance of which the defendants signed and delivered to the manager of the plaintiff, a printed letter, addressed to and previously prepared by him, to the effect following:

'In consideration of advances made and to be made to us from time to time, we hereby agree to repay the same, with interest thereon at the rate of ten per cent. per annum; and we further agree that all moneys and securities for moneys, warehouse, shipping, or other receipts or other securities, which may from time to time be handed in to you by us, whether indorsed over or simply delivered, shall, during the whole time they are in your possession, stand to you as security for any balance that may then be due from us to the said Bank of British Columbia as for said advances or otherwise; we hereby giving to you, for said bank, a lien not alone upon the moneys or other securities now in your hands, but also upon all such to be hereafter and hereunder delivered to you.
'We hereby irrevocably authorize and empower you, for the said bank, to sell and dispose of all such personal property, or any part thereof, at public or private sale, after the expiration of ten days' notice to us, and from the proceeds arising therefrom to pay the principal and interest, and all charges that shall be then due, and costs of sale, and the balance, if any, to pay over to us or our representatives on demand.'

Then follows a clause stating that 'by the schedule hereto annexed we (the defendants) enumerate the securities referred to herein.'

The proposition contained in the letter was accepted by the plaintiff. The schedule referred to is written below the letter upon the same sheet, and simply consists of a list of various lots of wheat and flour, the warehouse receipts for which were issued and delivered by the warehouseman to the manager of the plaintiff by direction of the defendants, and of certain promissory notes made or indorsed by them to the plaintiff. The first entry in these schedules is dated September 28, 1880, and reads, '5,272 sks. wheat; No. R(eceipt) 99; Greenwich' (dock); and the second is dated October 1, 1880, and reads, '1,630 sks. wheat; No. R. 105; Pacific. ' The last one is dated February 2, 1881. Between those dates the defendants caused to be issued and delivered to the plaintiff's manager warehouse receipts from Portland warehousemen for 90,484 sacks of wheat, 13,096 half sacks of flour, and also the promissory note of the defendant Marshall for $1,000, and that of . . . Lent for $475, from which the bank realized the sum of $192,745.30. During the same period the plaintiff advanced to the defendants sums of money which, with the interest charged there, amount to $204,943.48. And this action is brought to recover the different between the amount realized from the securities and the account for money loaned-- namely, $12,198.18.

The defendants, by their answer, allege that this wheat was 'deposited' with and 'pledged' to the plaintiff as security for the advances aforesaid, and it carelessly and negligently caused said wheat to be stored upon the lower tier of certain Portland wharves, known as the Pacific, Jones', and Smith's wharves, at a place where the Wallamet river was accustomed to overflow; that about the middle of January, 1881, it did negligently permit 27,690 sacks of said wheat, of the value of $47,501.76, to be damaged by a rise in the water of said Wallamet river, whereby the value thereof was diminished by $20,046.75; and pleaded the same as a counter-claim against the demand of the plaintiff, and pray judgment against the bank for the balance of $8,748.57.

The answer also contains allegations to the effect that certain of said securities were sold by the plaintiff without notice to the defendants, and that a portion of the wheat represented by said securities was sold for less than its fair market value, whereby the latter were damaged in the additional sum of $814.20. But on the trial these allegations were abandoned.

The plaintiff replied and denies that the defendants ever deposited 'with or pledged' to the plaintiff the property mentioned in the schedules aforesaid; denies that it stored the wheat on said wharves carelessly or at all, or so neglected to care for it while there, or that the defendants suffered any damage by the negligence of the plaintiff concerning said wheat, and alleges that the warehouse receipts for said wheat were issued and delivered to the plaintiff's manager, W. W. Francis, in his own name, who thereupon indorsed them to the plaintiff, who thereby acquired, under and by virtue of the stipulations contained in the letters aforesaid, 'a lien as by mortgage or hypothecation upon the wheat represented' by them; that the defendants selected the wharves upon which said wheat was stored and stored the same thereon, and had the same in their 'actual possession' all the time it was so stored, and cared for it as they could or thought best, to prevent it from being injured by a rise in the river, and that the plaintiff was under no obligation to take any care thereof; that in January, 1881, the Wallamet river 'suddenly and unexpectedly rose to a great and unusual height,' by means of which said sacks of wheat were damaged as alleged without the negligence or fault of any one.

On the trial the defendant Marshall testified, in substance, that when he proposed to Mr. Francis to open an account with the plaintiff, and give wheat receipts as security for advances, the latter said that he would take such receipts if issued to him directly by good warehousemen in Portland, but none other; and on being asked if receipts issued by Capt. George Flanders, of the Greenwich dock, and Mr. Z. J. Hatch, of the Pacific docks,-- which phrase colloquially included the Jones and Smith wharves, aforesaid,-- were good, he answered they were; that when and as the defendants sold wheat for shipment, the receipts for which had been issued to Mr. Francis, they obtained an order from the plaintiff to the warehouseman for the removal of the same, and as soon as it was delivered to the buyer on the wharf or on shipboard they delivered the money or bills of lading received therefor to the plaintiff, and received from it the warehouse receipts, which they surrendered to the warehouseman who issued them; that on the eleventh, twelfth, thirteenth, and fourteenth of January the water rose in the Wallamet river until it was within 17 inches of the lower tier or floor of the Pacific docks, and that in the afternoon of the latter day it was first ascertained from the dalles that the Columbia river was rising, and that it was quite probable that the wheat was in danger, but it was too late to remove it with the means at hand; that Marshall watched the rise in the river day and night, and was of the opinion that the wheat was not in danger-- at least to justify the expense of its removal-- until the unexpected rise in the Columbia was heard from, and that he then communicated the news to Mr. Francis and conversed with him on the subject, who told him that he had no suggestions to make, whereupon Marshall commenced to remove the wheat as quickly as he could to the Greenwich dock, a distance of over a mile, but only succeeded in saving 1,500 sacks before the wharf overflowed on the evening of the fourteenth of January and prevented further operations.

It is a matter of common knowledge and general notoriety in this country, and was so assumed by counsel in their arguments and by the court in its charge to the jury, that the Columbia river does not rise in the...

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2 cases
  • In re Cross
    • United States
    • U.S. District Court — Northern District of New York
    • September 5, 1917
    ... ... District Judge ... The ... claimant, City National Bank of Syracuse, N.Y., contends ... that, at the time of the bankruptcy of ... See ... Bank of British Columbia v. Marshall (C.C.) 11 F ... The ... three essential ... ...
  • Wayne Tank & Pump Co. v. Quick Service Laundry Co.
    • United States
    • Missouri Court of Appeals
    • July 6, 1926
    ...would be more consistent with the idea that plaintiff had a chattel mortgage than a lien on the water softener (see Bank of British Columbia v. Marshall [C. C.] 11 F. 19, 27), for where there is a lien the title to the property remains in the debtor. 37 C. J. 326; Koenig v. Fur Co. (Mo. App......

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