Kendrick State Bank v. Northern Pacific Railway Co.
| Decision Date | 31 December 1904 |
| Citation | 79 P. 457,10 Idaho 483 |
| Parties | KENDRICK STATE BANK v. NORTHERN PACIFIC RAILWAY COMPANY |
| Court | Idaho Supreme Court |
APPEAL-REVIEW-CONFLICTING EVIDENCE.
1. Where there is a substantial conflict in the oral evidence the verdict of the jury and the judgment of the trial court will not be reversed.
(Syllabus by the court.)
APPEAL from the District Court of Latah County. Honorable Edgar C Steele, Judge.
Action in claim and delivery. Judgment for the plaintiff. Affirmed.
Judgment affirmed, with costs in favor of the respondent.
I. N Smith, for Appellant.
Plaintiff's Exhibit "A"-- --is not a warehouse receipt. Porter's name is not attached--it is not in the form prescribed by Session Laws of Idaho of 1899, pages 7, 8, nor is it in any manner such a document as would be admissible on a criminal prosecution against Porter under those sections. The words therein, "in store," add nothing to its significance, as it was issued without authority, and Russell knew it at the time he got it. The usual storage receipt that was required by the statutes was not given at the time they were delivered there, for the reason, as Mr. Russell was informed, that the party having charge of the warehouse had no authority to issue what are called warehouse receipts, etc. Both Porter and Cleveland say Cleveland had no authority to issue warehouse receipts. (People's Bank v. Gayley, 92 Pa. 518; Cathcart v. Snow, 64 Iowa 584, 21 N.W. 94 ( "stored"); Sinsheimer v. Whitely, 111 Cal. 378, 52 Am. St. Rep. 192, 43 P. 1109; Geilfuss v. Corrigan, 95 Wis. 651, 60 Am. St. Rep. 147, 70 N.W. 306, 37 L. R. A. 166; State v. Bryant, 63 Md. 66; Union Savings Assn. v. St. Louis Grain Exchange Co., 81 Mo. 341.) Plaintiff came into court to procure provisional remedies of claim and delivery, on an affidavit which was not true. This was iniquitous conduct relating directly to the suit, and involving the matters in controversy. That such action prevents plaintiff from obtaining any relief and stops the granting of any relief to him is settled in Revised Statutes of Idaho 4020; Pomeroy's Equity Jurisprudence, secs. 397, 404. The next question to consider is, the title of Kendrick State Bank to the property in controversy. The title of the bank rested on the "receipt"--heretofore shown to be void. It therefore had nothing, and the motion for non-suit was proper. The bank could take no greater rights under the "receipt" than Russell had. Russell had no receipt--if he obtained it as he said, it was void, as having been obtained surreptitiously from an unauthorized agent; if he obtained it as Cleveland said, it was void, as being a mere memorandum and not a receipt of any nature. (Franklin Nat. Bank v. Whitehead, 149 Ind. 560, 63 Am. St. Rep. 302, 49 N.E. 592, 39 L. R. A. 725; Gueilfuss v. Corrigan, 95 Wis. 65, 60 Am. St. Rep. 143, 70 N.W. 506, 37 L. R. A. 166.)
Forney & Moore, George W. Coutts and G. W. Suppiger, for Respondent bank, cite no authorities.
John M. Bunn and Ellis T. White, for Northern Pacific Railway Company, Respondent, cite no authorities.
The facts are stated in the opinion.
This action is one in claim and delivery and was brought in the probate court of Latah county, the Kendrick State Bank being the plaintiff and the Northern Pacific Railway Company the defendant, to recover the possession of four hundred and thirty-seven boxes of apples of the alleged value of $ 437. On application to the court, L. A. Porter, the appellant here, was permitted to intervene.
The pleadings are somewhat lengthy, and it is sufficient to say that the real question in issue was as to the ownership of said four hundred and thirty-seven boxes of apples. The cause was tried in the probate court and the judgment was in favor of the bank. The cause was appealed to the district court and tried there by the court with a jury, and the verdict and judgment was in favor of the bank against the intervener appellant. The appellant by his plea in intervention claimed to be the owner of the fruit in controversy, and that he shipped the same by the Northern Pacific railroad from himself at Kendrick, Idaho to himself at St. Paul, Minnesota, on the eleventh day of November, 1904. He alleges that he shipped four hundred and ninety-one boxes of fruit, more or less, at the value of $ 500; that said fruit was en route, and that he had a bill of lading issued by said railroad company, and while the fruit was so en route, and without the exercise of vis major, or any event giving cause therefor, the respondent bank and the railroad company, wrongfully and without right, set out said car of fruit and unlawfully stopped the same and removed four hundred and twenty boxes thereof from the car, and converted the residue to their own use; that the bank instituted this action and omitted to join the intervener in its affidavit, and that the bank falsely stated in its affidavit of claim and delivery that the cause of detention of said fruit was unknown; whereas it knew the cause thereof and that the bond on claim and delivery was void as being justified to before the attorney for plaintiff. To that complaint in intervention the railroad company filed an answer denying the material allegations. The bank answered the complaint in intervention, denying the material allegations thereof and averred that it was the owner of said fruit. This appeal is from the judgment and order denying a new trial. It will be seen, therefore, that this action is one in claim and delivery with an intervener setting up rights to the property.
The first question to be determined is the ownership of the apples in controversy. If the appellant was the owner of them, then the judgment must be reversed, but if he is not, the judgment must be affirmed.
It appears from the evidence that a settlement was made, or attempted, between Porter and one Russell on the fifth day of November, and Russell testified as follows: He also testified that after Mr Porter had left Kendrick on the 5th of November, that he received the following receipt from O. M. Cleveland, who had charge of the warehouse operated by Porter in which the apples were stored, to wit: Russell testified that on the evening of the 5th, after receiving that receipt, he sold the apples to the bank, and that he acted for the bank and ordered the apples loaded for shipment; that he hired a man to expedite the loading of the same; that later he discovered that some pears had been placed in the car, and he thereupon notified the agent of the railroad company not to ship the apples, and he was informed...
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