Abernathy v. Wheeler

• Decision Date: 05 December 1891
• Citation: 92 Ky. 320,17 S.W. 858
• Parties: Abernathy et al. v. Wheeler et al.
• Court: Kentucky Court of Appeals

17 S.W. 858

92 Ky. 320

Abernathy et al. v. Wheeler et al.

Court of Appeals of Kentucky.

December 5, 1891

Appeal from court of common pleas, Christian county.

"To be officially reported."

Action by Wheeler, Mills & Co. against Abernathy & Long and another for conversion. From a judgment for plaintiffs, defendants appeal. Reversed.

Bennett J.

C. S Anderson agreed to do farm work in Christian county for J. S Anderson during the year 1888. He was to receive as compensation for his work his board and lodging and $150, and for any balance that might be due him at the end of the year on account of his wages he was to have tobacco enough, raised on the farm in 1888, to pay said balance. At the close of said year J. S. Anderson was indebted to C. S. Anderson on account of said contract in the sum of $135. On the respective dates of July 21st and the 19th of September 1888, J. S. Anderson executed a mortgage on said crop of tobacco to Wheeler, Mills & Co., tobacco warehousemen in the city of Hopkinsville, Ky. which mortgage was duly recorded etc. In 1889, said balance being unpaid, and J. S. Anderson having died, C. S. Anderson caused two hogsheads of said tobacco to be prized and sent in the name of C. S. Anderson to the tobacco warehouse of the appellants in the city of Hopkinsville, for sale. The appellants, as such warehousemen sold said tobacco at public sale, and placed the net proceeds of sale in bank to the credit of said sale; and, thinking that C. S. Anderson was J. S. Anderson, they gave him a check for the net proceeds of said tobacco. Wheeler, Mills & Co., mortgagees, etc., sued Abernathy & Long and C. S. Anderson, etc., for the price of said tobacco. It is admitted that Abernathy & Long received and sold said tobacco as public tobacco warehousemen in the usual course of business, and paid the proceeds of sale to C. S. Anderson, without actual notice of the existence of appellees' mortgage. Are Abernathy & Long responsible for the sum for which the tobacco was sold? We think not. They were public warehousemen, for the purpose of receiving the tobacco of the producer, and selling it at public auction in consideration of receiving pay for storage and certain commissions on the sales. They assumed the obligation of serving the entire public in the matter of receiving and selling the tobacco of the producer, and they had no right to select their customers and to refuse others, provided they...