Miller v. Warden, Frew & Co.
| Decision Date | 04 January 1886 |
| Citation | 2 A. 90,111 Pa. 300 |
| Parties | Miller v. Warden, Frew & Co |
| Court | Pennsylvania Supreme Court |
Argued November 10, 1885
Error to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term, 1885, No. 71.
This was an action of replevin, by Warden, Frew & Co., against Andrew D. Miller to recover 8,000 oil barrels of the value of $ 10,000, pledged as security by Miller to Warden, Frew & Co. for a loan of $ 10,000 by them to Waring Bros. The defendant pleaded property, bankruptcy, and the absence of seizure by the sheriff.
On the trial before White, A. L. J., the following facts appeared:
In 1874, Andrew D. Miller was a refiner of oil in Allegheny City. Waring & Bros., of Pittsburgh, having a branch house in Philadelphia as Waring Bros. & Co., were largely engaged in business as commission merchants, and through them, Miller sold most of his refined oil.
In December, 1874, Waring & Bros., whose condition financially at that time was supposed by Miller to be good, represented to Miller that it was desirable for them to have greater bank facilities in the East than they then possessed; and that the First National Bank of Philadelphia had consented to a loan of $ 30,000, upon security, if the firm made that bank their depository. They asked Miller, who had in his yards about 40,000 oil barrels, if he would, as accommodation, pledge 24,000 oil barrels to secure the bank in the proposed loan to them of the $ 30,000. To this Miller agreed, and to show his willingness to the bank in Philadelphia, on the 28th of December, gave the following memorandum to Warings:
On December 29th, O. T. Waring, of the firm of Waring Bros., and Waring Bros. & Co., called on Mr. Philler, president of the First National Bank of Philadelphia, with this bill of sale for the purpose of securing $ 10,000, actually needed on that day. Mr. Philler declined to make the loan on account of the form of the paper. He wanted a collateral note and a warehouse receipt. He also gave Waring to understand that he did not want to make any negotiations with him, unless through Warden, Frew & Co., it being understood that the latter firm was to be guarantor of the notes. On the evening of the same day, O. T. Waring, returned the bill of sale to his firm in Pittsburgh, having first, however, filled the blank therein with the name of Warden, Frew & Co.
On December 30th, O. T. Waring came to Warden, of the firm of Warden, Frew & Co., stating that his firm could not get word from Pittsburgh, and that they must have $ 10,000. Warden, Frew & Co., gave them a loan of $ 10,000 on the 30th of December, Waring agreeing to hold the said papers and deliver them to Warden, Frew & Co.
On the 31st of December, Waring & Bros., at Pittsburgh, received the information from Philadelphia, that Warden, Frew & Co., had advanced them their $ 10,000 upon the barrels, and that the invoice had been returned with instructions to procure a warehouse receipt and send it and to turn the barrels over to Lockhart, a member of the firm of Warden, Frew & Co.
On the 4th of January, 1875, about two or three o'clock in the afternoon, three bills of sale and three warehouse receipts were drawn up and signed by Miller. The bills of sale were post-dated December 28th, 1874, and the warehouse receipts were post-dated January 2d, 1875. A copy of each is as follows:
About an hour after signing these papers, and while they were still in the hands of Lockhart, Warings went to protest in Philadelphia. Miller, upon hearing the fact, immediately notified Lockhart, and his partner, Frew, not to forward the papers, and to advise the bank to make no advances. Frew, then a member of Warden, Frew & Co., immediately sent the following dispatch to W. G. Warden:
The bank declined to make the loan and the transaction fell through. Some time afterwards, about sixty days afterwards, W. G. Warden, one of the defendants, procured Mr. Philler, the president of the bank, to indorse one of the bills of sale and warehouse receipts to Warden, Frew & Co. Mr. Philler testifies that these papers had not in the meantime been in his possession.
The protest of Waring Bros. was followed by their suspension and bankruptcy, and with them they took Miller, the plaintiff in error. He became an adjudicated bankrupt on the 11th of February, 1875, returning in his schedules all these barrels as his assets.
Subsequently he secured a composition with his creditors, which was approved by the Court and ordered to be filed.
On the 22d of April, 1875, a writ of replevin was issued at the instance of Warden, Frew & Co., to replevin 8,000 barrels of the value of $ 1.25 each, to which Miller entered his appearance, and on the same day a declaration was filed that the defendant took and unjustly detained these barrels. Application was made to the District Court of the United States for an injunction to restrain the replevy, and a restraining order was issued, of which the attorney of Warden, Frew & Co. took notice; and the result was that there was no replevy of the barrels and no return of the writ was ever made by the sheriff. Testimony on the injunction proceedings was taken and the matter was allowed to linger until March 18th, 1882, when the Court dissolved the restraining order of 1875.
The defendant presented inter alia the following points:
1st. That plaintiffs, under the evidence in this case, have failed to disclose any right in themselves to immediate and exclusive possession of the 8,000 barrels in controversy, under which this suit in replevin can be maintained.
Refused. (First assignment of error.)
2d. That if the jury believe that the bill of sale, of which the letter-press (Ex. 3) is a copy, was unaccompanied by a warehouse receipt at the time of the loan of $ 10,000, on December 30th, 1874, then if the jury should believe that said loan was made on the strength of said barrels, the plaintiffs would have no right to maintain this action.
Refused. (Second assignment of error.)
4th. If the jury believe from the evidence, that Mr. Warden had arranged, prior to December 30th, 1874, for a loan to be made by the First National Bank of Philadelphia, to Waring Bros. & Co., of $ 30,000, on 24,000 oil barrels, and that the papers had been transmitted to Pittsburgh, for the purpose of substituting the First National Bank of Philadelphia, in the bill of sale, and to secure warehouse receipts to perfect the collateral for said bank, then the plaintiffs had no title or right of possession of said barrels in themselves at the time said loan was made.
The evidence does not sustain the point. It is refused. (Third assignment of error.)
5th. Plaintiffs have no right to claim protection through these barrels, they not having advanced the whole sum of $ 30,000 for which the collateral was intended by Capt. Miller to be applied.
Refused. (Fourth assignment of error.)
6th. That the bank, at the time indorsement of warehouse receipt was made, had no title which they could pass by said indorsement, and that plaintiffs knew that fact, and are therefore not innocent holders for value, and therefore can not recover in this action, by reason of such indorsement.
Refused under the evidence. (Fifth assignment of error.)
7th. That the sheriff, never having replevied said barrels, nor made return of the said writ of replevin, the said writ is dead and this action cannot be maintained.
Refused. (Sixth assignment of error.)
8th. That the remedy for plaintiffs at time this writ was sued was exclusively in the United States District Court, for Western Pennsylvania. That the barrels in dispute were at the time in the possession of that Court, and that the composition did not operate to perfect that writ, or to change the jurisdiction of that Court.
Refused. (Seventh assignment of error.)
9th. That at the time the loan of $ 10,000 was made, the barrels called for by the warehouse receipt had not been separated from other barrels, the property of said defendant, and so individuated that a writ of replevin could have been issued at that time.
Refused. (Eighth assignment of error.)
In the general charge the Court instructed the jury inter alia as follows:
According to the testimony of Warden and O. T. Waring, he, (Waring,) was to hold that bill of sale and they were to have it put into proper shape. It is immaterial whether Warden, Frew & Co. held that original bill of sale, or not. If it was in the possession of Waring Bros. at the request and instance of Warden, Frew & Co., and they were to retain it, then,...
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