Ferch v. Victoria Elevator Company

• Decision Date: 11 May 1900
• Docket Number: 11,925 - (51)
• Citation: 82 N.W. 678,79 Minn. 416
• Parties: MICHAEL FERCH v. VICTORIA ELEVATOR COMPANY
• Court: Minnesota Supreme Court

82 N.W. 678

79 Minn. 416

MICHAEL FERCH v. VICTORIA ELEVATOR COMPANY

Nos. 11,925 - (51)

Supreme Court of Minnesota

May 11, 1900

Action in the district court for Big Stone county to recover $6,086.52 damages for refusal to deliver wheat pursuant to Laws 1895, c. 148, § 4.The case was tried before C. L Brown, J., who at the close of plaintiff's testimony granted defendant's motion for a dismissal of the action.From an order denying a motion for a new trial, plaintiff appealed.Affirmed.

SYLLABUS

Grain -- Laws 1895, c. 148, § 4, a Penal Statute.

The requirements of Laws 1895, c. 148, § 4, providing for a recovery of one cent per bushel for the withholding of wheat from any person having a storage receipt, after demand, must be considered as penal in character; and it must be held that a strict compliance with all its terms and conditions is necessary to set the statute in motion.

Demand.

A demand upon the agent's son at the usual place of business of the agent did not constitute a proper demand of the agent or of the defendant in this case.

Demand -- Evidence.

The facts showing the attempted demand considered, and held insufficient for that purpose.

C. M Ferguson and Thomas Kneeland, for appellant.

E. T. Young, for respondent.

OPINION

LOVELY, J.^[1]

Action to recover over $6,000 for the violation of the statute which provides that as against any person storing wheat under the warehouse laws of this state, who has issued storage receipts for the same,

"On the return or presentation of such receipts by the lawful holder thereof, properly indorsed, at the elevator or warehouse where the grain represented therein is made deliverable and upon the payment or tender of payment of all lawful charges, * * * the grain shall be immediately delivered to the holder of such receipt, * * * The grain represented by such receipt shall be delivered within twenty-four hours after such demand shall have been made and cars or vessels or other means of receiving the same from the elevator or warehouse shall have been furnished.

If not delivered upon such demand within twenty-four hours after such car, vessel or other means for receiving the same shall have been furnished, the warehouse in default shall be liable to the owner of such receipt for damages for such default, in the sum of one cent per bushel, and in addition thereto one cent per bushel for each and every day of such neglect or refusal to deliver."Laws 1895, c. 148, § 4.

The plaintiff had in store at the defendant's warehouse at Correll, in this state, upwards of 1,900 bushels of wheat.On July 31, 1896, plaintiff and one Woods, defendant's agent in charge of the warehouse, had a settlement for warehouse charges, and the proper storage receipts under the warehouse law were delivered to plaintiff.There had been a general clearing out of the wheat for the past season.The grain had all been shipped out of the elevator, and the term of Woods' service as general agent under his contract had expired on the day last mentioned.The agent, Woods, had a store adjoining the elevator, where he had previously transacted its business, as defendant's agent in paying off and settling with its customers, and continued to retain the keys of the elevator and to transact business for the defendant, with its consent, some time after August 1 following.On August 1, the day after the receipts were issued, the plaintiff made out a...