Tobacco Growers' Co-op. Ass'n v. Danville Warehouse Co. Inc

• Decision Date: 08 January 1926
• Citation: 132 S.E. 482
• Parties: TOBACCO GROWERS' CO-OP. ASS'N. v. DANVILLE WAREHOUSE CO., Inc.
• Court: Virginia Supreme Court

132 S.E. 482

TOBACCO GROWERS' CO-OP. ASS'N.

v.DANVILLE WAREHOUSE CO., Inc.

Supreme Court of Appeals of Virginia.

March, 18, 1926.

Error to Corporation Court of Danville.

Action by the Tobacco Growers' Co-operative Association against the Danville Warehouse Company, Incorporated. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with directions.

Harry Wooding, Jr., of Danville, John Martin, of Halifax, and W. T. Joyner, of Raleigh, N. C, for plaintiff in error.

Meade & Meade, of Danville, for defendant in error.

WEST, J. This is a writ of error to a judgment for the defendant in a suit instituted by Tobacco Growers' Co-operative Association, hereafter called association, against Danville Warehouse Company, Incorporated, hereinafter called warehouse company, to recover the penal sum of $500 and $100 attorney's fees, for inducing A. J. Norman, one of its members, to breach his marketing contract with the association, in violation of the provisions of the act of the General Assembly of Virginia, approved March 26, 1923 (Acts Extra Session 1923, p. 131).

The title, the preamble, and section 25 of the act, which is involved here, are copied in the margin.¹

The association is a North Carolina corporation, duly licensed to do business in Virginia. The warehouse company operates six warehouses in the city of Danville, for the sale of leaf tobacco at auction, which are similar to all other warehouses in Virginia engaged in selling leaf tobacco at auction. The witnesses, who are men of long experience in the warehouse business, know of no warehouse in Virginia engaged in the sale of leaf tobacco at auction, which was established as a public warehouse by order of court, pursuant to section 1348, c. 58, of the Code of Virginia 1919 (Code 1887, § 1797), or for which samplers, or inspectors, have been appointed under section 1349 of the Code of 1919.

On November 20, 1924, A. J. Norman, who had signed a marketing contract with the association, delivered 2, 000 pounds of his tobacco on the floor of the Union Warehouse, which was operated by the warehouse company. After the tobacco had been delivered to the warehouse and prior to the sale, writ-Tobacco Growers' Co-operative Association, and that his tobacco was about to be sold, offered for sale, or displayed for sale on the floor of their warehouse. J. H. Wilson, president of the warehouse company and general manager of all its warehouses, after being informed by Norman that he was a member of the association, and after being shown the written notice by one of the managers of the Union Warehouse, required Norman's tobacco to be sold at public auction by the auctioneer of Union Warehouse. After deducting the usual commissions on the sale and in addition five cents per pound to be paid the association as damages provided for in Norman's contract with the association, a check of the warehouse for the net proceeds of the sale was delivered to Norman. The check for the damages was not delivered to the association and was exhibited in evidence at the trial.

The case was tried by a jury.

The court refused instructions Nos. 1 and 2, offered by the plaintiff, as follows:

"No. 1.

"The court instructs the jury that if they believe from the evidence:

"(1) That on the 19th day of November, 1924, one A. J. Norman, a member of complainant association, delivered to the defendant, Danville Warehouse Company, at the Union Warehouse in the city of Danville, a load of tobacco for sale at auction, and

"(2) That after said tobacco was so delivered, but before the sale of the same, a notice in writing stating that the tobacco belonging to A. J. Norman, a member of plaintiff association, was about to be sold, offered for sale, or displayed for sale, on the floor of said Union Warehouse, was served on the managers of said warehouse or one of them, and

"(3) That after the service of such notice said tobacco was sold at auction on the floor of said warehouse under the direction of James H. Wilson, president and general manager of the defendant corporation, by the auctioneer regularly employed by the said defendant to sell tobacco at said warehouse, and that the record of said sale was kept by the regularly employed clerk or clerks at said warehouse, and that said Norman was paid for said tobacco by a warehouse check, and that the defendant re-ceived the commission charged for the sale of the tobacco,

"Then they shall find for the plaintiff and assess its damages at a sum of not less than $100 nor more than $500.

"No. 2.

"The court instructs the jury that the Union Warehouse as operated by the defendant, Danville Warehouse Company, on November 20, 1924, was a public warehouse within the meaning of chapter 110 of the Acts of 1923, by virtue of which this action is brought."

The only instructions given by the court were the following, granted at the request of the defendant:

"The court instructs the jury that, before the jury can find for the plaintiff against defendant, they must believe from the evidence that the said Danville Warehouse Company, Incorporated, was at the time of the transaction set out in the notice of motion conducting a public tobacco warehouse in the city of Danville, Va.

"The court further instructs the jury that a public tobacco warehouse is a place established by law for the storage and safe-keeping of tobacco, which shall be kept in good repair and at all times be open for receiving, storing, selling, and delivering tobacco, with the duty imposed by law upon it of keeping two official samplers of tobacco, who shall be appointed by the Governor, by and with the advice and consent of the Senate, for the term of four years, with the power to issue receipts or manifest for the tobacco received by it, to draw samples therefrom, and to perform the other duties prescribed by law for regulating public tobacco warehouses."

The jury returned a verdict for the defendant upon which judgment was entered

The objections to the judgment, urged by the association, make it necessary for us to consider only two questions:

(1) Was the Union Warehouse a public warehouse within the meaning of the act approved March 26, 1923, chapter 110 of the act of 1923, p. 131?

(2) If it was, is the act of March 26, 1923, constitutional?

The law as to "inspection and other matters concerning tobacco" is found in the Virginia Code 1919, c. 58, §§ 1348 to 1399, inclusive. Section 1348 provides that tobacco warehouses, which were public warehouses on the day before the Code takes effect, shall continue to be such, and that the circuit and corporation courts may hereafter authorize the erection of tobacco warehouses, or may establish the same, as public warehouses, which warehouses shall be constructed so as to keep safely, and guard against fire and weather, as far as practicable, all tobacco stored therein, and shall keep the same in good repair, and at all times, except Sunday, open for receiving, storing, selling, and delivering tobacco.

Section 1349 provides that for each such public warehouse there shall be two samplers of tobacco, who shall be appointed by the Governor, by and with the advice and eon-sent of the Senate, for a term of four years commencing on the 1st day of October succeeding their appointment.

Section 1354 requires the samplers to—

"uncase and break every hogshead, cask, tierce, or box of tobacco brought to their respective warehouses to be sampled; weigh and sample it, and mark, or brand the same as 'Virginia, ' or 'Western, ' according to the facts; and also, with the name of the warehouse, the tare of the hogshead, cask, tierce, or box; the quantity of net tobacco therein, and the condition thereof."

Section 1355 provides that "all leaf tobacco sold upon the floor of any tobacco warehouse in the state of Virginia shall first be weighed by some reliable person, " who shall have first taken and subscribed the oath prescribed by that section. This section further requires the proprietor of each and every warehouse to render to each seller of tobacco at his warehouse a bill stating the amount charged for auction fees and commissions and weighing and handling the same.

Under section 1360 samplers are required to receive and weigh all loose tobacco brought to their warehouses and give certificates for the same, and by section 1361 are also required, on the delivery of any tobacco to their warehouse, to give a receipt therefor, describing the same as unsampled tobacco.

Section 1386 requires every commission merchant or other person, to whom unmanufactured tobacco in hogsheads or packages owned by a farmer or planter is consigned for sale, to store such tobacco in a public warehouse, where it is practicable, unless otherwise instructed in writing by the owner, and makes it unlawful to offer such tobacco for sale by sample, unless such sample has been drawn and certified by a sampler of tobacco appointed by the Governor.

The act, approved March 26, 1923 (Acts Extra Session 1923, p. 129), requiring leaf tobacco to be sold only in the name of the true owner thereof, and that records of such sales be kept, applies to every warehouseman or co-operative marketing association to which any leaf tobacco may be delivered for sale or display for sale thereof. The term "warehouseman" as used in that act is defined as:

"Any person, firm or corporation engaged in the business of selling leaf tobacco at auction, for commission, or for any other consideration."

The original Co-operative Marketing Act, approved February 18, 1922 (Acts of 1922, p. 50), was an act to encourage the co-operative marketing of farm products in Virginia. Realizing that the breaching of their contracts, by members of the association, would tend to defeat the purpose of the act, section 25 thereof penalized any "person" who knowingly induced any member to breach his con-tract with the association. By the amendatory act approved March 26, 1923, section 25 was so amended as to penalize any person, firm, or...