Hallgarten v. Oldham

• Decision Date: 03 April 1883
• Citation: 135 Mass. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Julius Hallgarten & others v. Jonathan Oldham

135 Mass. 1

Julius Hallgarten & others v. Jonathan Oldham

Supreme Court of Massachusetts

April 3, 1883

[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Replevin of 497 slabs of tin. Writ dated September 29, 1880. The case was submitted to this court on agreed facts, in substance as follows:

The plaintiffs at the times hereinafter mentioned were bankers, and one Lissberger was a dealer in metals, all doing business and domiciled in the State of New York. Lissberger was largely indebted to the plaintiffs for advances of money made in New York; and, as security therefor, the plaintiffs held merchandise, warehouse receipts, and other property, deposited with them in New York by Lissberger.

On or about May 3, 1880, Lissberger applied to the plaintiffs, in New York, for a release of security to the amount of $ 11,000, so held by them, and offered to substitute therefor a warehouse receipt and weigher's certificate for certain tin of the same value, then, and until service of the writ in this action, stored in a warehouse belonging to one Damon, on Damon's Wharf, in the control of Gardner Prouty, in Boston, the receipt and property to be held as security in like manner with the securities for which it was substituted. The receipt, signed "Gardner Prouty, wharfinger," was as follows: "No. 919. Boston, April 26, 1880. Received on storage, at Damon's Wharf in store No. 8, for H. Lissberger, the following-described merchandise from bark Mohican, which we promise to deliver to him upon the payment of charges. Marks: Four hundred and ninety-seven (497) slabs tin." Prouty had received the tin at Boston, and there signed the receipt, and delivered it and the weigher's certificate. The plaintiffs assented to Lissberger's proposition, received, in the usual course of business from Lissberger, the weigher's certificate and receipt duly indorsed in blank by Lissberger, and delivered to him the property for which he had applied. This transaction took place in New York. No record of this transaction, or of any part of it, was made on the records of the city of Boston, and the tin was not delivered to the plaintiffs, except so far as what is above stated constituted a delivery. The warehouse in which the tin was stored had been largely and exclusively used for the storage of property belonging to others than the owners of the warehouse for more than twenty years preceding this transaction, and the form of warehouse receipts given during that period by Prouty was like the one in this case, with this qualification, that, about eleven years before this transaction, there was introduced into the receipt, after the word "deliver," the word "to" followed by a blank space for the insertion of the word "him" or "them," this addition not having previously formed a part of the receipt.

The warehouseman who issued the receipt in this case was not a public warehouseman, appointed under the provisions of the St. of 1860, c. 206, and the acts amendatory thereof. The debt of Lissberger for said advances is still unpaid, and exceeds the value of all the securities. The plaintiffs retained the receipt and certificate without action until August 7, 1880, when they gave notice to the warehouseman that they held the receipt, having first learned on the previous day of the issuing of the attachment hereinafter mentioned.

On June 15, 1880, the defendant, a deputy sheriff for Suffolk county, attached the tin as the property of Lissberger, upon a writ sued out of the Superior Court by Cyrus Wakefield and others against Lissberger, to recover a debt. The writ was returnable at July term 1880, and was entered at that term; and at April term 1881 judgment thereon was rendered for Wakefield and others in the sum of $ 27,000 and upwards, which judgment is in no part satisfied.

The tin was held by the defendant under the attachment until the service of the writ in this action. There is no fraud or bad faith imputed to the plaintiffs in any of their dealings, or in their omission to give notice as aforesaid; and neither of the plaintiffs in the action of Wakefield and others against Lissberger, nor the defendant in this action, had, until after August 7, 1880, any notice or knowledge of the transaction between Lissberger and the plaintiffs, or of any interest or claim of the plaintiffs in or to the tin, unless they are affected with notice by reason of the matters hereinbefore stated.

The plaintiffs made due demand on the defendant for the amount of their debt, and otherwise complied with the provisions of the Gen. Sts. c. 123, § 63, and the debt was not paid or tendered; and, after the expiration of ten days from the demand, they brought this action.

The law of New York, if material, is as stated in the judgments of its courts in the cases of Wilkes v. Ferris, 5 Johns. 335, and Yenni v. McNamee, 45 N.Y. 614, which cases may be referred to.

If the plaintiffs were entitled to recover, judgment was to be entered for them, with damages in the sum of one dollar, and costs; otherwise, for the defendant, for a return, damages to be assessed, and costs.

Judgment for the defendant.

S. Bartlett & S. Lincoln, for the plaintiffs. 1. Transfers of personal property are controlled by the law of the domicil of the parties. Rhode Island Central Bank v. Danforth, 14 Gray 123. Parsons v. Lyman, 20 N.Y. 103. Toledo Bank v. Shaw, 61 N.Y. 283. By the comity of the States of the Union, each respects the law of the others, unless it is in direct contradiction of some statute or policy of its own. This is especially true of personal contracts. Kelly v. Crapo, 45 N.Y. 86. Crapo v. Kelly, 16 Wall. 610. Parsons v. Lyman, 20 N.Y. 112. Banchor v. Gregory, 9 Mo.App. 102. Livermore v. Jenckes, 21 How. 126. Ockerman v. Cross, 54 N.Y. 29. Pond v. Cooke, 45 Conn. 126. Holmes v. Remsen, 4 Johns. Ch. 460. Harris v. Bradley, 2 Dill. 284. The law of New York should govern, and by it the plaintiff acquired an absolute title. Wilkes v. Ferris, 5 Johns. 335, 344. Yenni v. McNamee, 45 N.Y. 614.

2. By the indorsement and delivery of maritime bills of lading, the absolute title to, and right of possession of, the property which they represent passes, as against all the world, without notice to the bailee. Barber v. Meyerstein, L. R. 4 H. L. 317. This effect results, not from the terms of the contract, but from the custom of merchants, sanctioned by courts. The same principle applies to the receipts or bills of lading of inland carriers. Green Bay National Bank v. Dearborn, 115 Mass. 219. Forbes v. Boston & Lowell Railroad, 133 Mass. 154. Dows v. Greene, 24 N.Y. 638. Emery v. Irving Bank, 25 Ohio St. 360. Holmes v. German Security Bank, 87 Penn. St. 525. Joslyn v. Grand Trunk Railway, 51 Vt. 92.

The same principle applies also to warehouse receipts. They are similar to bills of lading in form and substance. Both are creatures of commercial usage, sanctioned by courts. Both are contracts of a bailee: one, that he will transport and deliver property; the other, that he will hold and deliver it. The assignment of one should be as effectual as the assignment of the other. Inland bills, whether they contain the word "assigns" or not, and whether assigned or not, pass the title and possession to one to whom they are delivered bona fide and for valuable consideration. Toledo Bank v. Shaw, ubi supra. City Bank v. Rome, Watertown & Ogdensburgh Railroad, 44 N.Y. 136. Emery v. Irving Bank, ubi supra.

Two conditions are essential to effect a valid transfer of personal property, namely: (1.) An agreement to transfer the right of property. This is sufficient to pass the title as between the parties. Gibson v. Stevens, 8 How. 384, 400. (2.) There must be a delivery of the property to give the right of possession as against third parties, and this may be actual or symbolical. By commercial usage, symbolical delivery may be effected by a delivery of muniments of title. Cairo National Bank v. Crocker, 111 Mass. 163. Green Bay National Bank v. Dearborn, ubi supra. Forbes v. Boston & Lowell Railroad, ubi supra. Dickinson v. Central National Bank, 129 Mass. 279. Boston Music Hall v. Cory, 129 Mass. 435. Russell v. O'Brien, 127 Mass. 349. Chicago National Bank v. Bayley, 115 Mass. 228. Hathaway v. Haynes, 124 Mass. 311. Joslyn v. Grand Trunk Railway, ubi supra. Farmers & Mechanics' Bank v. Logan, 74 N.Y. 568. Haille v. Smith, 1 B. & P. 563. Ryall v. Rolle, 1 Atk. 165. Atkinson v. Maling, 2 T. R. 462.

Both these conditions were fulfilled by Lissberger's indorsement and delivery of the warehouse receipt to the plaintiffs. A warehouse receipt is a muniment of title. By its indorsement and delivery the property passes. Pratt v. Parkman, 24 Pick. 42. Russell v. O'Brien, ubi supra. Carter v. Willard, 19 Pick. 1. Chapman v. Searle, 3 Pick. 38, 45. Lucas v. Dorrien, 7 Taunt. 278. Zwinger v. Samuda, 7 Taunt. 265. Harris v. Bradley, ubi supra. Shepardson v. Cary, 29 Wis. 34. Hale v. Milwaukee Dock Co. 29 Wis. 482.

The rule that symbolical delivery transfers the property is no longer supported on the ground that actual delivery is impossible on account of the inaccessibility of the property, as, for instance, property at sea. Property, although not inaccessible, is transferred by the indorsement and delivery of inland bills of lading. No distinction can be drawn between inland bills of lading and warehouse receipts, so far as the accessibility of the property which each represents is concerned.

It is admitted that the delivery of a bill of parcels, of a mortgage, or of a bill of sale, does not give the right of possession except as between the parties; but such documents are not symbols, and therefore symbolical delivery cannot be effected through them.

The principle contended for is...