Bell Storage Co. Inc v. Harrison

Citation180 S.E. 320
CourtSupreme Court of Virginia
Decision Date13 June 1935
PartiesBELL STORAGE CO., Inc., et al. v. HARRISON.

Appeal from Circuit Court of City of Norfolk.

Bill of interpleader by the Bell Storage Company, Incorporated, against Mrs. C. W. Harrison and others. From a decree setting aside, on petition of the named defendant, previous decree and dismissing bill of interpleader, complainant and others appeal.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, GREGORY, BROWNING, and CHINN, JJ.

James E. Heath and William G. Maupin, both of Norfolk, Vincent L. Parker, of Portsmouth, and Fred E. Martin, of Norfolk, for appellants.

J. Brooks Mapp, of Keller, and Tazewell Taylor and N. T. Green, both of Norfolk, for appellee.

CHINN, Justice.

At first November rules, 1932, Bell Storage Company, Inc., filed its bill in the circuit court for the city of Norfolk, setting forth that it was engaged in business as a warehouseman in said city, and that on the 16th day of the preceding February, Mrs. C. W. Harrison, also known as Mrs. Ruth Ray Harrison, deposited with it a large amount of household goods and furnishings at a storage rate of $8 per month, with certain charges thereon for handling into storage and other expenses, for which complainant issued and delivered to said depositor, in the name of Mrs. C. W. Harrison, a nonnegotiable warehouse receipt; that Mrs. Harrison having failed to pay said charges, complainant, acting in accordance with the provisions of chapter 57 (section 1290 et seq.) of the Code, sent her a notice by registered mail inclosing an itemized statement of its claim, stating the sum due at the time of said notice, the date or dates when it became due, a brief description of the goods against which complainant's liens existed, and demanding that the same should be paid within 10 days from the time said notice should have reached its destination, and further stating that unless said charges were paid within the time specified the goods would be sold at auction on Tuesday, August 23, 1932; that said charges not having been paid, complainant had proceeded to advertise said goods for sale, and to sell the same at public auction on the day specified to the highest bidder for cash; that at said sale an amount had been realized sufficient to pay complainant's claim in full and leave a balance of $339.56 in its hands; that complainant had been notified by Wm. F. Smith & Co, the Hogshire Tent & Awning Manufacturing Company, Inc., and D. P. Paul & Co, Inc., that each of them claimed a lien upon the balance in complainant's hands, and had been warned by each of them not to pay such balance to any person other than themselves; that complainant had been threatened with legal proceedings by the above-mentioned parties for payment to each of them respectively of the said balance; that complainant had no interest in the balance in its hands, and was ready to pay the same to whomsoever might be entitled to it.

The bill prays that Mrs. Harrison and the above-mentioned lien claimants be made parties defendant thereto; that they severally set forth to which of them the said sum of $339.56 rightfully belongs; that they may be required to interplead and settle their demands amongst themselves, and complainant be allowed to recover out of such funds the just costs of the proceedings.

Wm. F. Smith & Co., the Hogshire Tent & Awning Manufacturing Company, Inc., and D. P. Paul & Co., Inc., filed their separate answers to the bill claiming liens on the said fund by virtue of executions issued on judgments in favor of the respective respondents against C. W. Harrison, husband of the defendant Mrs. C. W. Harrison. Mrs. Harrison was proceeded against by order of publication and made no appearance. Mr. Harrison was not made a party to the suit and was not served with process, either actual or constructive.

On December 10, 1932, the court entered a decree in the cause directing the Bell Storage Company, Inc., out of the sum in its hands, to first pay the costs of the proceedings, to next pay Wm. F. Smith & Co. $259.80, and to then pay the balance of said sum to Hogshire Tent & Awning Manufacturing Company, Inc.; and dismissing the cause from the docket.

On February 4, 1933, pursuant to due notice to all the parties, Mrs. Harrison filed her petition in said cause under section 6072 of the Code, setting forth that she had been summoned in the suit by order of publication and had not had an opportunity to be heard, and that the complainant had no right to maintain the bill of interpleader filed by it in said court for the following reasons: (1) That the claim of the Bell Storage Company, Inc., was excessive to the amount of $116.50, and that the said company had no valid claim as warehouseman on the goods of the petitioner for said $116.50, and no right to make sale of said goods to satisfy such alleged claim on its part. (2) That the sale made by complainant of the goods deposited by petitioner with it as warehouseman was illegal and void because said sale was held less than 15 days from the time of the first publication of the advertisement of such sale, contrary to the provisions of the statute (section 1322 of the Code), and that the act of said warehouseman in selling her goods as aforesaid was a conversion of said goods to its own use for which said complainant is liable to the petitioner. Petitioner thereupon prayed that the said decree of December 10, 1932, be reopened and reheard; that the sale of said goods be declared null and void, and the said bill of interpleader be dismissed.

On February 20th following, an order was entered in the cause granting a rehearing in accordance with the prayer of the petition, and directing that the parties to the suit answer the same within 30 days. The answers were duly filed and depositions taken, and on July 10, 1933, a final decree was entered in the cause in which it was held by the court that the sale made by Bell Storage Company, Inc., of the goods deposited for storage with it by the defendant Mrs. Harrison was invalid and of no effect, and that the said storage company had no right to maintain said suit and bill of interpleader. It was thereupon decreed that the decree entered on December 10, 1932, be annulled and set aside, and that the bill of interpleader be dismissed and the cause stricken from the docket. It is from the foregoing decree that this appeal has been taken.

It is shown by the evidence, in fact admitted, that the first publication of the notice of the sale was made on the 10th day of August, 1932, and the sale was held on August 23, 1932, less than 15 days after the first publication of the advertisement of said sale, contrary to the provisions of section 1322 of the Code. It is contended, however, that under section 1323 of the Code the warehouse company had a right to sell the goods without any advertisement at all, because it is not shown that said goods were not perishable, and the burden rests upon Mrs. Harrison to prove that they were not perishable. The first answer to this contention is that the receipt given Mrs. Harrison by the storage company sets forth an itemized list of the goods in question, from which it appears that they consisted entirely of household furniture and furnishings which were not of a perishable nature. There is also other evidence tending to" show this. So, even if the burden were on Mrs. Harrison to prove that the goods were not perishable (which we by no means concede), we think the evidence in the record is sufficient to sustain such burden.

The second answer to the contention is that under section 1323 of the Code it is provided that if the goods are of a per-ishable or hazardous nature, the warehouseman may give such notice to the owner or to the person in whose name the goods are stored, as is reasonable and possible under the circumstances, to satisfy the lien upon such goods and remove them from the warehouse, and in the event of the failure of such person to satisfy the lien and remove the goods within the time specified, the warehouseman may then sell the goods without advertising them. No such notice was given Mrs. Harrison, or attempted to be given. On the other hand, the appellant company proceeded, according to the allegations of its bill and also as shown by the evidence, strictly in conformity with section 1322, except as to the mandatory provision of that section that, "The sale shall not be held less than fifteen days from the time of the first publication" of the notice of the sale. Having adopted that method of disposing of the goods and collecting its charges, the storage company cannot now claim that it sold the goods under section 1323 of the Code prescribing the method whereby the warehouseman may sell goods in storage which are perishable or hazardous to keep. Arwood v. Hill's Adm'r, 135 Va. 235, 117 S. E. 603; White v. Bott, 158 Va. 442, 158 S. E. 880, 163 S. E. 397; Nagle v. Syer, 150 Va. 508, 143 S. E. 690; ...

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3 cases
  • In re Professional Coatings (NA), Inc.
    • United States
    • U.S. Bankruptcy Court — Eastern District of Virginia
    • 9 Mayo 1997
    ...property as well as adjudicate that the moving party is free from future liability with respect to the funds. Bell Storage Co. v. Harrison, 164 Va. 278, 180 S.E. 320, 323 (1935). Here, Norshipco deposited the funds with Norfolk Circuit Court because, as it stated in its state pleadings, it ......
  • Barr v. Snyder
    • United States
    • Missouri Supreme Court
    • 11 Abril 1949
    ... ... (6) ... And because the escrow agent is not absolutely disinterested ... Bell Storage Co. v. Harrison, 180 S.E. 320, 164 Va ... 278; 30 Am. Jur., sec. 10, p. 220; Ross ... ...
  • Crandall v. Woodard
    • United States
    • Virginia Supreme Court
    • 10 Septiembre 1965
    ...title to the press until it was resold, and the complete possession as well during the same time. In Bell Storage Company v. Harrison, 164 Va. 278, 285, 180 S.E. 320, 322, 100 A.L.R. 419, this is 'In accordance with the well settled general rule that a bailee is estopped to deny his bailor'......

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