Nieter v. The McCaull-Dinsmore Co.
| Decision Date | 23 May 1924 |
| Docket Number | 23,947 |
| Citation | 199 N.W. 85,159 Minn. 395 |
| Parties | A. N. NIETER v. THE McCAULL-DINSMORE COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $11,445.15 for conversion of grain. The case was tried before Dickinson, J., who made findings and ordered judgment in favor of defendant. From an order denying his motion for an order amending the findings and conclusions or for a new trial and from an order granting defendant's motion for amended findings, plaintiff appealed. Affirmed.
Construction of North Dakota statute.
1. The statute of North Dakota relating to the storage of grain, as construed in Kastner v. Andrews, 194 N.W. 824 creates the relation of bailor and bailee between the owner of the grain and the warehouseman with whom it is stored. The warehouseman cannot give good title after the quantity of grain in the warehouse is less than the aggregate required to satisfy outstanding storage receipts.
Construction of warehouse receipts for grain.
2. The terms of such receipts do not preclude the holder from consenting to the sale of the grain by the warehouseman. A sale is rightful and gives title to the purchaser if such consent is given.
Consent of receipt holder to sale by warehouseman.
3. Consent is not to be inferred from the fact that a receipt holder is familiar with the custom prevailing among warehousemen of shipping and selling grain held in storage. Whether it may be inferred, depends upon the facts in the particular case. It does not change the relations of the parties before the grain is sold. If the sale was authorized the legal rights of the parties are determined by the law of agency.
Estoppel of appellant.
4. The evidence warrants the conclusion that the receipt holders acquiesced in the shipment of their grain by the warehouseman to the respondent for sale on commission, and justified the trial court in finding that appellant is estopped from asserting that there was a conversion of the grain. The question whether an estoppel exists is one of mixed law and fact.
W. H. Stutsman and Jacobson & Murray, for appellant.
Cobb, Wheelwright, Hoke & Benson and L. M. Staples, for respondent.
Appellant is the assignee of a large number of storage receipts issued for grain stored in a public elevator operated by the New Leipzig Equity Exchange in the village of New Leipzig, North Dakota. Respondent is a Minneapolis dealer in grain, buying and selling it for others on commission.
On July 23, 1920, respondent entered into a contract with the exchange, whereby the former agreed to advance money and give credit to the latter to an amount not exceeding $25,000. In consideration thereof it was agreed that 80 per cent of the grain purchased by the exchange should be consigned to respondent for sale on commission.
The receipts in question were issued between August 30, 1920, and March 14, 1921, and represent grain of the alleged value of $11,445.15. Between September 18, 1920, and April 25, 1921, the exchange shipped 52 cars of grain to respondent. It sold the grain and credited the exchange with the net proceeds. There is a balance of $11,729.53 still due to respondent for advances made to the exchange. The exchange is insolvent. In an endeavor to collect pay for the grain, appellant brought this action, alleging a conversion by respondent.
1. The statutes of North Dakota relating to the storage of grain have been considered by the supreme court of that state in several cases. Kastner v. Andrews, 194 N.W. 824, is the most recent and refers to the earlier decisions. It was determined that the relation between the holder of a storage receipt, in the form prescribed by the North Dakota statute, and the warehouseman is that of bailor and bailee; that a warehouseman has the right to mingle stored grain with other grain and thus destroy its identity, but nevertheless the relation of bailor and bailee continues as it was in the beginning, and that, after the point is reached where the grain in the warehouse is reduced to a quantity below the aggregate required to satisfy outstanding receipts, the warehouseman cannot confer good title upon a purchaser of the grain remaining in the elevator. We accept this construction of the statute as final. Bronson v. St. Croix Lbr. Co. 44 Minn. 348, 46 N.W. 570; Lewis, Sutherland St. Const. p. 22. Under this construction, the statute does not confer upon a warehouseman authority by implication to sell stored grain, but we do not agree with appellant's counsel that the acts of the owner of the grain cannot bring about a situation which will estop him from asserting that the sale was wrongful.
2. The provision of the North Dakota statute upon which appellant relies reads thus:
"No such warehouseman shall insert in any warehouse receipt issued by him any language in anywise limiting or modifying his liability as imposed by the laws of this state." Comp. Laws N.D. 1913, § 3112.
This court has held that the receipt prescribed by our statute cannot be modified or changed by a subsequent verbal agreement, Thompson v. Thompson, 78 Minn. 379, 81 N.W. 204, 543, but not that the holder cannot authorize the warehouseman to ship and sell the grain without surrendering the receipt. On the contrary it has been held that, notwithstanding the terms of the receipt, the holder may consent to the sale of the grain and, when he does, the sale is rightful and gives title to the purchaser. Hall v. Pillsbury, 43 Minn. 33, 44 N.W. 673, 7 L.R.A. 529, 19 Am. St. 209; Mann v. Lamb, 83 Minn. 14, 85 N.W. 827.
No statute of North Dakota expressly forbidding the shipment or sale of stored grain has been called to our attention. Section 3113, Comp. Laws, provides that the holder of a storage receipt may require delivery at a terminal point of grain equal in quantity and quality to that covered by the receipt, and, unless it was placed in a special bin, delivery of the identical grain described in the receipt cannot be required. Our statute is different, and leaves no room for an inference that the shipment of grain in storage is permissible. It requires express authority from the owner and the return of the storage receipt. Section 4438, G.S. 1913. But, in spite of the requirement, it was said in the cases cited that the consent of the owner to the sale of his grain makes the sale rightful. The same conclusion is inevitable when we consider the less drastic provisions of the North Dakota statute.
3. Consent is not to be inferred from the fact...
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