Bailey v. Bensley

• Decision Date: 30 September 1877
• Citation: 1877 WL 9897,87 Ill. 556
• Parties: SAMUEL BAILEY, JR.v.JOHN R. BENSLEY et al.
• Court: Illinois Supreme Court

87 Ill. 556

1877 WL 9897 (Ill.)

SAMUEL BAILEY, JR.

v.JOHN R. BENSLEY et al.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Lee county; the Hon. WILLIAM W. HEATON, Judge, presiding.

Messrs. BARGE, DENSLOW & DIXON, for the appellant.

Mr. E. B. SHERMAN, and Mr. F. SACKETT, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of assumpsit, brought by appellees against appellant, wherein a verdict and judgment were rendered against the latter for $1119.68.

The appellees, Bensley & Wagner, were commission merchants, doing business in Chicago, and appellant, Samuel Bailey, Jr., a grain buyer at Baileyville, Illinois. On the trial, it appeared that appellant commenced consigning grain and produce to the appellees, for sale on commission, in the year 1868, and continued so to do until the fall of the year 1873. Appellant was in the habit of making drafts upon appellees at the time of each consignment, for about ten per cent less than its market value, which drafts appellees paid--portions of the grain appellant ordered to be held until he directed it to be sold. Accounts of sale, when made, were rendered by appellees to appellant, as also monthly accounts current, giving items of debit and credit, down to December 1, 1873. For the last balance debit at that time this suit was brought, April 6, 1874.

The grain was sent by rail, and upon reaching Chicago was stored in public warehouses, and appellees received from the warehousemen, as it arrived, receipts entitling the holder to the same quantity of grain, of similar kind and grade, upon return of the receipts.

The main controversy in the case is in respect of these warehouse receipts, appellant insisting that the receipts issued upon the storing of his grain were his property, and that when appellees were directed by him to hold certain grain until he ordered its sale, it was their duty to retain the identical warehouse receipts issued for that grain, whereas, appellees maintain that, according to the usage and custom of the transaction of business by commission men doing business on the Board of Trade in Chicago, in holding the grain, or in making sales of it on account of any particular shipper, no attention is paid by the commission man to the matter of holding or transferring the identical receipts which were received by him when that person's grain was received into the warehouse; that the receipts are used indiscriminately, except that in general the commission merchant endeavors, when sales are made, to get rid of the oldest receipts first, and to hold his fresh receipts; and appellees therefore insist that their duty was performed if they, at all times, kept on hand receipts for grain of the several kinds and grades, in sufficient quantities to represent the aggregate amount of grain received by them from their several consignors remaining unsold by order of such consignors.

Appellant claims he is entitled to the price the particular receipts on account of his grain sold for, and only liable for storage to the time of such sale. Thus, he sent appellees fifteen thousand bushels of corn in June, July, August and September, 1872, with orders to hold it. The warehouse receipts issued for this corn appellees sold almost immediately upon its arrival, and only $36.19 extra storage had then accrued upon it. Yet, though appellant did not order the grain to be sold until May 16, 1873, and it was then sold, and $1394.43 extra storage had accrued upon it, his claim is, that he is entitled to the price which the identical warehouse receipts, originally received for the corn, sold for, and is only liable for the $36.19 extra storage. Appellees insist he is only entitled to the price of the sale May 16, 1873, and is liable for storage up to that time.

The proof as to the mode of doing business is, that on arrival in Chicago the grain is placed in one of the elevators or public warehouses by the railroad company, and mixed with other grain of the same kind and grade, so that its identity is wholly lost. After the grain has been received, it is passed to the credit of the consignee or commission man, and a warehouse receipt issued to him in his own name. Each receipt usually includes all the grain of the same grade going into the same elevator on account of the consignee for the same day, and not unfrequently it covers the grain received from several consignors. The number of the car from which the grain is received is written on the back of the receipt. All the testimony is, that there is no regard had to the identity of receipts,--that the date of the sale of a receipt would be no indication of the date of sale, on account of the consignor, of grain received in the cars named on the receipt.

There is no dispute as to the usage and custom of the business, and it must be conceded that the dealing of appellees was in conformity thereto, and their claim sanctioned thereby, while that of appellant is entirely unwarranted thereunder.

A person who deals in a particular market must be taken to deal according to the known, general and uniform custom or usage of that market; and he who employs another to act for him at a particular place or market, must be taken as intending that the business to be done will be done according to the usage and custom of that place or market, whether the principal in fact knew of the usage or custom or not. Story on Agency, §§ 60, 96, 199; 1 Chit. Cont. 11 Am. ed. 83; Sutton v. Taltram, 10 A. & E. 27; Bayliffe v. Butterworth, 1 Welsb. Hurls. & Gord. Exch. 428; Lyon v. Culbertson, 83 Ill. 33; United States Life Ins. Co. v. Advance Co. 80 Id. 549. We do not see how, as appellant claims, the warehouse receipt can be regarded as the property, or as representing the property, of the consignor, on account of the receipt of whose grain it issued, so that the parting with such particular receipt is a disposal of the consignor's property. The grain, on being received at the warehouse, is stored in common bins, mixed with other grain, and loses its identity, and becomes incapable of specific designation; that amount of grain is credited to the consignee. The warehouse receipt is given to the consignee as his voucher that he has in that warehouse, not the grain of the consignor, nor any particular grain, but a certain number of bushels of grain of the kind and grade mentioned in the receipt, subject to his order and disposal. The consignor is not named in the receipt. It does not represent his particular property. It is not issued to be used by him. For his protection and voucher he may be supposed to have the railroad receipt on shipment, and the acknowledgment of the consignee of the receipt of...