National Dock & Storage Warehouse Co. v. United States

• Citation: 27 F.2d 4
• Decision Date: 28 June 1928
• Docket Number: No. 2204.,2204.
• Parties: NATIONAL DOCK & STORAGE WAREHOUSE CO. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

27 F.2d 4 (1928)

NATIONAL DOCK & STORAGE WAREHOUSE CO. v. UNITED STATES.

No. 2204.

Circuit Court of Appeals, First Circuit.

June 28, 1928.

Robert Homans, of Boston, Mass. (Hill, Barlow & Homans, of Boston Mass., on the brief), for plaintiff in error.

A. Chesley York, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM and JOHNSON, Circuit Judges, and BREWSTER, District Judge.

BINGHAM, Circuit Judge.

This action is brought under the Tucker Act, Judicial Code, § 24, par. 20 (28 USCA § 4120), to recover for the storage, wharfage, and labor charges on certain bales and bags of wool, which the United States, through the Quartermaster Corps of the Army, had caused to be stored with the plaintiff in the years 1919 and 1920. The United States filed a counterclaim for damages due to the failure of the plaintiff to deliver, on or about November 19, 1919, to the quartermaster 14 bales of wool, which he had stored with it in the latter part of 1918.

In the court below the plaintiff's charges were established at $3,718.50; the defendant's damages, at $2,478.31; and judgment was entered for the plaintiff for $1,240.19 and costs. Then this writ of error was taken.

The assignments of error relate to certain rulings made by the court bearing upon the defendant's right of recovery under its counterclaim and to the court's refusal to make certain rulings requested by the plaintiff; also to certain findings made by the court, on the ground that there was no evidence to support them.

There was no controversy as to the plaintiff having received the 14 bales of wool for storage and having issued its warehouse receipt for the same. As to the demand made upon the plaintiff for the delivery of the wool, it appeared that the quartermaster, on November 19, 1919, requested its delivery, and on November 19, 1919, wrote the plaintiff as follows:

"This morning I sent you order to deliver to my men and army truck 14 bales of wool remaining on hand at your warehouse under Q. M. C. lot No. 5295. My checker informs me that you are unable to deliver this wool at the present time, and I now request that you please so inform me in writing by bearer."

If a reply was sent to this, it was not put in evidence. The plaintiff admitted at the trial that it was unable to deliver the 14 bales of wool on either November 17 or November 19, 1919.

It also appeared that some time prior to November, 1919, the government had stored with the plaintiff many bales of wool, and that in that month there were 5,000 or 6,000 bales then stored with it; that on November 17 and on November 19, 1919, the government was indebted to the plaintiff, and had been since November 1, 1919, for storage charges incurred both before and after November 1st on bales of wool other than the 14 bales in question, which were not paid on November 19, 1919, and have not been since that time.

The plaintiff excepted to the following findings:

"The men on the truck were informed by the plaintiff's employees that the bales in question could not be found and advised the officer in charge to that effect. He thereupon asked the plaintiff to state its position in writing. Whether it did so does not appear; but apparently both parties understood that the goods were not delivered because the plaintiff did not have them."

The Uniform Warehouse Receipts Act, adopted in Massachusetts (Gen. Laws, c. 105), contains the following provisions:

"Section 15. A warehouseman, in the absence of a lawful excuse provided by this chapter, is bound to deliver the goods upon a demand made either by the holder of a receipt for the goods or by the depositor, if such demand is accompanied by —

"(a) An offer to satisfy the warehouseman's lien;

"(b) An offer to surrender, properly endorsed the receipt, if negotiable; and

"(c) A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the warehouseman.

"If the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor so accompanied, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal or failure."

"Section 27. A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise; but not, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care."

"Section 32. Subject to section thirty-four, a warehouseman shall have a lien on goods deposited or on the proceeds thereof in his hands, for all lawful charges for their storage and preservation; also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, cooperating and other charges and expenses in relation thereto; also for all reasonable charges and expenses for notice, and advertisements of sale, and for sale thereof where default has been made in satisfying his lien.

"Section 33. Subject to the provisions of the following section, such a lien may be enforced —

"(a) Against all goods, whenever deposited, belonging to the person who is liable as debtor for the claims to secure which the lien is asserted; and

"(b) Against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims to secure which the lien is asserted, if such person had been so intrusted with the possession of the goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have been valid.

"Section 34. A warehouseman loses his lien —

"(a) By surrendering possession; or

"(b) By refusing to deliver the goods when a demand is made with which he is bound to comply under this chapter."

"Section 36. A warehouseman having a lien valid against the person demanding the goods may refuse to deliver them to him until the lien is satisfied."

A question raised by the assignments of error is whether in this case the United States was required by section 15 to show a demand for delivery of the wool accompanied by an offer to satisfy the warehouseman's lien, in order to have the burden of the issue of negligence or freedom from fault borne by the warehouseman; or whether the demand that was made, unaccompanied by such offer, was sufficient for such purpose, it appearing that at that time no reason was given by the warehouseman for its failure to deliver, and that, at the time of the trial, its failure in this respect was due to its inability to make delivery.

Under the common law of Massachusetts, the state in which the contract of bailment was made, the depositor had the burden of proving that any loss or injury to goods sustained during the period of bailment was caused by the warehouseman's failure to exercise the care a reasonably careful owner of similar goods would exercise. Willett v. Rich, 142 Mass. 356, 7 N. E. 776, 56 Am. Rep. 684.

Section 15 of the act in question changed this rule of the common law and placed the burden upon the warehouseman, in case he refused or failed to deliver the goods bailed on demand, of showing that his inability to make delivery was not due to his failure to exercise such care, provided the depositor accompanied his demand by (a) an offer to satisfy the warehouseman's lien; (b) an offer to surrender, properly endorsed, the warehouse receipt, if negotiable; and (c) a readiness and willingness to sign, when the goods were delivered, a delivery receipt, if such signature was requested by the warehouseman.

The evidence in this case does not show that the warehouse receipt was negotiable, or that the warehouseman requested the depositor to sign a delivery receipt. These two provisions of the act are therefore without application in the case. It does appear, however, that the depositor, on making his demand for the wool, did not accompany it with an offer to satisfy the warehouseman's lien, and in this situation the question is whether the warehouseman still has the burden of proof, and may be required to show that his inability to make delivery was not due to his failure to exercise the care of a reasonably careful owner, if under the facts of the case it could be found that the warehouseman by his conduct waived a demand accompanied by an offer to satisfy his lien.

The District Court was of the opinion that the provision of section 15, relating to a demand and offer to pay, was inserted for the benefit and protection of the warehouseman, and that, unless he manifested an intention at the...