27 F.2d 4 (1st Cir. 1928), 2204, National Dock & Storage Warehouse Co. v. United States

Docket Nº:2204.
Citation:27 F.2d 4
Case Date:June 28, 1928
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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27 F.2d 4 (1st Cir. 1928)




No. 2204.

United States 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, Sec. 24, par. 20 (28 USCA § 41(20)), 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

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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), contained 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 acknowledgement 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...

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