State v. Cowdery
| Citation | 81 N.W. 750,79 Minn. 94 |
| Decision Date | 06 February 1900 |
| Docket Number | 11,826 - (20) |
| Parties | STATE v. LYMAN E. COWDERY and Another |
| Court | Minnesota Supreme Court |
Lyman E. Cowdery and Jared G. Wheeler were indicted in the district court for Dodge county for grand larceny in the first degree. Defendants having demanded separate trials, defendant Cowdery was tried before Buckham, J., and a jury, which rendered a verdict of guilty. From an order denying a motion for a new trial, defendant Cowdery appealed. Reversed.
Grain -- Warehouse Receipt -- Authority to Sell.
A provision in a storage receipt, issued under G.S. 1894 § 7646, that the stored property may be mingled with other property of the same kind, or transferred to other elevators or warehouses, does not confer authority on the warehouseman to sell the property described therein.
Grain -- Bailment.
Under such a receipt, when it in other respects conforms to the provisions of section 7646, the contract is a bailment, and not a sale.
Flax.
Flax is included within the meaning and intent of G.S. 1894, § 7645, et seq., and is subject to the protection of the warehouse law.
Evidence.
The evidence in this case does not show beyond a reasonable doubt that there was an intent to defraud the prosecutor, which is an essential ingredient of the offense charged, and the conviction is therefore set aside.
Childs Edgerton & Wickwire, for appellant.
The tickets issued by the firm were contracts of sale, and not of bailment. If the relation of bailor and bailee existed, it was by virtue of the statute, for at common law the transaction was not one of bailment, but one of sale; inasmuch as the grain was intermingled with other grain of like grade and removed to other elevators that Cowdery and Wheeler selected. The statute does not attempt to make such transaction a bailment, where an express contract is made authorizing the intermingling and removal of the grain. The statute was only designed to make the transaction a bailment where there was no contract right to intermingle and remove grain. Rahilly v. Wilson, 3 Dill. 420; McCabe v. McKinstry, 5 Dill. 509; Powder Co. v. Burkhardt, 97 U.S. 110; Chase v. Washburn, 1 Oh. St. 244; South Australian v. Randell, 3 Priv. Coun. 101; Lonergan v. Stewart, 55 Ill. 44; State v. Rieger, 59 Minn. 151; 22 Alb. L.J. 358; Murray v. Pillsbury, 59 Minn. 85; Weiland v. Sunwall, 63 Minn. 320; Smith v. Clark, 21 Wend. 83; Dykers v. Allen, 7 Hill, 497; Hurd v. West, 7 Cow. 752, and note 756; 2 Kent, Com. 589, and note; State v. Stockman, 30 Ore. 36; Fishback v. Van Dusen & Co., 33 Minn. 111, 123; O'Dell v. Leyda, 46 Oh. St. 244.
It is the settled doctrine of the supreme court of Illinois that such a transaction is a sale and not a bailment. Richardson v. Olmstead, 74 Ill. 213; Lonergan v. Stewart, supra; Cloke v. Shafroth, 137 Ill. 393. See also Ardinger v. Wright, 38 Ill.App. 98.
The state failed to establish any criminal intent on the part of Cowdery to defraud Bradshaw or any one else. State v. Connelly, 57 Minn. 482, 486; State v. Johnson, 77 Minn. 267; Messenger v. St. Paul City Ry. Co., 77 Minn. 34; Brennan L. Co. v. Great N. Ry. Co., 77 Minn. 360. The contention that defendants held the property as bailees, based on G.S. 1894, § 7645, is not well founded, because flax is a plant and is not embraced within the term "grain."
W. B. Douglas, Attorney General, and C. W. Somerby, Assistant Attorney General, for respondent.
Defendant, who was jointly indicted with another person, was convicted of the crime of larceny, as bailee, in fraudulently appropriating a quantity of flax to his own use, with intent, as charged in the indictment, to deprive the owner thereof of his property, under the provisions of G.S. 1894, § 6709, subd. 2.
Lyman E. Cowdery was a warehouseman, and, with his partner, was running an elevator at Kasson, where he received, from time to time, quantities of flax from the prosecuting witness, Bradshaw, aggregating in amount 760 bushels, and evidenced by nine receipts or tickets, which were given to the owner of the flax, and which the prosecution insist constituted the relation of bailor and bailee between the parties thereto, under the warehouse laws of this state. G.S. 1894, § 7645, et seq. The warehousemen became insolvent, made an assignment, and were unable either to furnish the flax or put up the equivalent in money.
The defendant insists that the tickets or storage receipts did not create the relation of bailment between defendant (who was tried alone) and the owner of the flax, but by the terms of such receipts constituted a sale thereof to the defendant and his partner, or, at least, authority to part with the flax; that the warehouse law, under which such contract of bailment must be established, does not apply to flax; also that, by reason of the previous business relations and conduct of the owner of the property stored with the defendant, the latter was led to believe that he was authorized to deal with the flax without reference to the terms of the receipts; from which, as defendant claims, it follows that there was no proof of the necessary intent to defraud, which is alleged in the indictment and is an essential element of the statute, and must therefore be proved.
The warehouse receipts referred to contain the requisites of G.S. 1894, § 7646, in all respects. They, "in clear terms, state the amount, kind, and grade" of the flax stored, and "the terms of storage," and, in addition, the following provision, which embraces the pith of the contention upon the construction of the storage receipt, viz.:
"Express authority is given, by acceptance hereof, that said grain or seed may be mingled with grain or seed of other persons, and shipped or removed to any other elevator we may select."
And it is urged that these provisions, which authorize a removal of the flax, etc., take this case out of the provisions of the Penal Code.
It is urged, in support of this claim, that an interpretation of the warehouse statutes should be made that does not conflict with the generally settled rules of the common law, and that the particular provision of these contracts quoted above is inconsistent with the theory of a bailment.
While it is unquestionably true that the commingling of the property of one person with the property of another, with the consent of the owners, so as to destroy the specific identity of each, conclusively negatives the relation of bailor and bailee upon common-law rules, it must be remembered that it was the object of the statute to provide a remedy for the protection of the agricultural producers of this state which they did not have before, and, if the purpose and practical means by which such protection is afforded is to be found clearly expressed in the statute, it necessarily must be the statute, instead of the common law, that we are to interpret. It is our duty to discover the true legislative intent expressed by the statute, for, within constitutional limitations, that is always the real test in such cases. We cannot allow a repeal or modification of a statute by the law which the statute itself seeks to change; this is self-evident. Neither can we abridge the effectiveness of a wholesome statute by judicial construction or finesse. The very nature of the business that has long been conducted in this state by the owners of elevators and warehouses in dealing with the agricultural producers would lead to the inference that the provisions of the statute referred to were intended to create on the part of the warehousemen an obligation to have the owner's property or its equivalent ready for delivery when called for. The receipt, according to the statute, must be in writing, and it must state amount and...
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