Dean v. Driggs — 44 N.Y. St. Rep. 402

Majority

p. 402

Robert J. Dean et al., Resp’ts, v. Marshall S. Driggs, App’lt.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Warehousemen—False receipt.

A -warehouseman is liable to a bona fide endorsee of a warehouse receipt issued by him for a false statement therein in relation to the contents of the packages for which it was given, irrespective of his knowledge that the article was not of that description.

(Dean v. Driggs, 27 St. Rep., 314 , followed.)

p. 403

Appeal from a judgment entered on third trial before Mr-Justice Lawrence and a jury, rendered in favor of the plaintiff.

The action was brought to recover damages sustained by the defendant’s act in issuing two negotiable warehouse receipts, certifying he had on storage 2,463 barrels of Portland cement, to be delivered on return of said receipts, which receipts plaintiffs purchased, or became hona fide owners of, relying upon the statement contained in said receipts, that the goods described in the receipts were Portland cement, while in truth and in fact they were not. Defendant, upon demand, refused to deliver-2,463 barrels Portland cement, but offered to deliver 2,463-barrels containing some other commodity.

J. Berry, for app’lt; Hatch & Warren, for resp’ts.

Although I am of the opinion that a-transferee of a warehouse receipt gets no greater or other rights-thereunder than the person to whom it was originally issued, which seems to be clearly intimated in the case of W hitlock v. Hay, 58 N. Y., 487 , yet, in view of the decision upon the previous-appeal in this case, the judgment and order appealed from must-be affirmed, with costs.

I fail to find anything in the act relating to warehousemen,, wharfingers and others which make a warehouse receipt negotiable in any sense of the term. The language of the statute is that such receipts may be transferred by endorsement thereof, and any person to whom the same may be transferred shall be deemed and taken to be the owner of the goods, wares and merchandise therein specified so far as to give validity to any pledge, lien or transfer made or created by such person or persons. In other-words, the statute simply provides that the title to the property therein mentioned may be transferred by the endorsement and delivery of the warehouse receipt, which is far from making such a receipt negotiable in the sense in which the word is used when-applied to commercial paper. Therefore, it would seem, as intimated in the case of Whitlock v. Hay, supra, that all that the transferee of the warehouse receipt gets, are the rights conferred upon the original holder of such receipt, and if such original holder, by-reason of his own fraud, has no cause of action, it seems to follow that his transferee cannot maintain such action.

The judgment should be affirmed, with costs.

O’Brien, J., concurs in the result