Ex parte Benjamin Harris & Co.

• Decision Date: 04 November 1927
• Docket Number: 12307.
• Parties: Ex parte BENJAMIN HARRIS & CO. v. COLUMBIA SALVAGE CORPORATION. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

140 S.E. 101

141 S.C. 430

Ex parte BENJAMIN HARRIS & CO.

ATLANTIC COAST LINE R. CO. v. COLUMBIA SALVAGE CORPORATION.

No. 12307.

Supreme Court of South Carolina

November 4, 1927

Appeal from Common Pleas Circuit Court of Charleston County; M. L Bonham, Judge.

Action by the Atlantic Coast Line Railroad Company against the Columbia Salvage Corporation, in which Benjamin Harris & Co. intervened. From a judgment for plaintiff, the intervener appeals. Reversed and remanded, with directions to enter judgment for the intervener.

See also, 138 S.C. 113, 135 S.E. 877.

Nathaniel B. Barnwell, of Charleston, for appellant.

Fitzsimons & Fitzsimons, of Charleston, for respondent.

PURDY A. A. J.

Columbia Salvage Corporation, with its office in New York, had plants in the different parts of the country for salvaging war ammunition, and had a plant at Charleston. On April 13, 1922 an explosion occurred at this plant, resulting in damaging or destroying a large number of cars belonging to the Atlantic Coast Line Railroad Company, and the Railroad Company brought suit against the Salvage Corporation, claiming $35,000 as damages for the injuries done to its property, and on May 11, 1922, caused an attachment to be levied on the property of the Salvage Corporation at Charleston, and a part of this property consisted of a large number of brass cartridge cases.

Benjamin Harris & Co., of Chicago, dealing in property of this kind, intervened in the action which was pending between the Railroad Company and the Salvage Corporation, claiming to be the owner of 1,000 tons of the cartridge cases.

The Railroad Company filed its answer, denying the title of the intervener. An issue was framed, in which was submitted to a jury the question whether the cartridge cases in question were legally the subject of attachment as the property of the Salvage Corporation on May 11, 1922, the date on which the cartridge cases were seized, and, the jury having answered in the affirmative, the intervener appealed.

At the conclusion of the testimony for the intervener, the Railroad Company made a motion for a nonsuit, which was refused, and at the conclusion of all the testimony, motions were made by the intervener and the Railroad Company for directed verdicts. Both of these motions were refused.

Title to the property claimed by the intervener rests upon the following alleged facts: On April 12th, Benjamin Harris & Co. purchased of the Salvage Corporation the property now claimed, by an agreement reached over the long distance telephone, conducted by Benjamin Harris, president of Benjamin Harris & Co., and Charles A. Levine, president of the Salvage Corporation, confirmed by a telegram and by a signed contract, all dated April 12th. Shipment was to be made after June 1st.

It was agreed that, in settlement, a letter of credit, irrevocable, should be arranged by the intervener with the New York Trust Company, to be issued by that company in favor of the Salvage Corporation, in the sum of $171,326.16, against which drafts might be drawn to that amount, not later than May 15th, the drafts to be accompanied with negotiable warehouse receipts of Charleston Port Terminal Warehouse, which had the property in storage, and a letter from the seller, guaranteeing payment of storage charges until June 1st and the payment of the expenses of loading.

This arrangement was made on May 8th by Mr. Harris, representing his company, with the New York Trust Company, and on the same date drafts were drawn by the Salvage Corporation in favor of itself, and on May 9th, the New York Trust Company accepted these drafts-six in number, aggregating the sum authorized to be drawn for. On each draft there was a signed acceptance, dated May 9, 1922, and a further indorsement on each draft, signed by New York Trust Company:

"This bill was secured at time of acceptance by independent warehouse, terminal or other similar security conveying security title to brass scrap stored in South Carolina, and the acceptor will remain secured throughout the life of the bill."

Each draft bore the indorsement of Columbia Salvage Corporation, by Chas. A. Levine, president. The form of the warehouse receipt is not material. It provided that the property should be retained on storage, and delivered only on surrender of the receipt, properly indorsed, with all charges paid. There were four of these warehouse receipts. They were delivered to the New York Trust Company by the Salvage Corporation, duly indorsed, at the time that the drafts were accepted. On May 12th, the Salvage Corporation procured the money on these drafts from the Manufacturers' Trust Company of New York, which was then known as the Columbia Bank.

In behalf of the Railroad Company, its right to hold the attachment is based upon the following alleged state of facts: Joseph B. May was offered as a witness in behalf of the intervener. He testified that he was auditor for the Salvage Corporation in May, 1922, and it was his duty to keep a record of the transactions of the corporation, and that he carried through the transaction between the Salvage Corporation and Harris & Co., and stated that he handled the drawing of the draft. (Although several drafts were drawn, it is referred to by the witness as a draft.)

"Q. When you got the acceptance of the draft, what did you do with it? A. Why, we took the draft with the warehouse receipts, and put them into our own bank for discount.

Q. On what date was the draft discounted? A. On May 12, 1922.

Q. These warehouse receipts for the brass shell cases were deposited with the draft, were they not? They were part and parcel of the draft."

The Railroad Company relies further, in support of its position, upon the following:

Mr. Wait, a witness for the intervener, was the general manager of the Charleston Port Terminal Company. He testified: That he was acquainted with Mr. Levine, the president of the Salvage Corporation, having worked for Mr. Levine at various places. That Mr. Levine was a self-made man, very cautious. That he would carry valuable papers around in his pocket for a week or ten days. That the first notice that the Port Terminal Company had that the property had been sold was when he got a letter from Mr. Levine, dated May 10th, received on May 12th. He said that inasmuch as the attachment was issued on the 11th of May, he thought Mr. Levine had held back the mailing of the letter for 24 hours, and gives several reasons for his belief, stating that:

"Mr. Levine was always playing to get the last quarter of a cent out of this brass. I don't doubt he was carrying that letter in his pocket trying to get another quarter of a cent."

"I have no doubt the letter was written on the day it was typed" (on the 10th of May).

"What was your suspicion? A. I was suspicious of him and the letter. The letter was back dated to avoid some responsibility in the ownership of the brass."

It will be noted from these different statements of the witness that they are self-destructive. He says he has no doubt it was written on the 10th, and then says it was back dated to avoid responsibility in the ownership of the brass, and says that Mr. Levine was carrying it in his pocket to get a higher price for the brass. At most, these statements are mere matter of opinion and conjecture and have no probative force or value, as bearing on the issue; besides, the warehouse company had the property, which was ample security for its charges, and its contract was, under its receipts given, to deliver the property only on receipt of payment of all charges, and it was not necessary to give it any notice of change of ownership because its receipts had to be produced and all charges paid, and the act of Mr. Levine was a mere matter of courtesy, and the notice was given with reasonable promptness after the drafts were drawn against the letter of credit.

The whole matter is in a very narrow compass. If the property belonged to the Salvage Corporation on the 11th of May, then it had a right to dispose of it and it was the subject of attachment; if the property did not belong to it on that...