Willner v. Morrell — 40 N.Y. Super. Ct. 222

Majority

p. 222

AUGUSTA WILLNER, Plaintiff and Appellant, v. JOHN H. MORRELL, Defendant and Respondent.

Headnote

I. CONSTRUCTION OF INSTRUMENT.

1. Redemption clause, effect of.

(a) When contained in an instrument in form of a bill of sale of personal property, it only gives a right of redemption ; it does not reserve the right of possession to the party making the instrument, but the party to whom it is made is entitled to possession against the maher.

H. CONTRACT.

1. Special clauses in the heading to a receipt.

(a) When the receipt is not given untihsome time after the transactions evidenced by it have occurred, and it nowhere appears that the receiptee, or the party claiming under him at the time of the giving of the receipt, assented to the special clauses, such special clauses will not constitute a cont/t'act although they in form purport to be 'such.

III. WAREHOUSEMEN RECEIPTS.

Special clauses.

(a) The heading to a receipt contained the following clauses among- others : “No goods delivered without a written order, or presentation of original receipt.” “ Q-oods will not be delivered to any person unless identified and authorized to receive the same.”

Held,

that upon the demand by a vendee of the party who stored the goods, the original receipt being present, and he being accompanied by the person who in the matter of the storage acted for the party who stored the goods, and who was there to identify the person making the demand as being the vendee, the above clauses did not warrant a refusal to deliver.

1. It was unnecessary to produce a written order.

IV. PERSONAL PROPERTY.

1. Contract not running with it.

(a) Where an owner makes a contract with his bailee whereby

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the bailor is not bound to deliver the property except on the written order of such owner, the bailee can not justify a refusal to deliver to a person succeeding to the ownership on the ground of non-presentation of a written order of such former owner.

Before Monell, Ch. J., and Sedgwick, J.

Decided December 6, 1875.

Appeal from judgment.

The action was to recover the possession of certain house furniture. The complaint set out the instrument under which the plaintiff claimed possession. The instrument was, in its form, a bill of sale of the property, ending : “This sale is made on this express condition, that I shall have the right to redeem the above described property at any time within one year,” upon payment of a specified sum of money, and it was executed by the then owner of the property.

The answer averred that under the bill of sale, above described, the plaintiff did not become immediately entitled to the possession of the property, and further, that before the bill of sale was executed, the then owner had stored the furniture with the defendant ,who was a public store-house man, and that by the terms of the contract of storage he was not bound to deliver the property until the storage receipt given by defendant was returned to him; and the answer further denied that the property was wrongfully detained by the defendant.

The action was tried by the court, a jury being waived. It appeared by plaintiff’s case that the then owner directed a person to have the property stored with the defendant, and it was so stored ; but at the time, no storage receipt was given, or special contract of storage made. The owner afterwards, in considera

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tion of a past indebtedness, made and delivered to the plaintiff the bill of sale above set out. A few weeks after this, the plaintiff, in company with the person who had acted for the owner in storing the property, went to the defendant at his store-house, showed the bill of sale to him, and demanded a delivery of the property to her. The defendant then delivered to the person accompanying the plaintiff a paper called the storage receipt. It was headed by several special clauses. Among them were, “Ho goods delivered without a written order or presentation of original receipt.” “ Goods will not be delivered to any person unless fully identified and authorized to receive them.” There followed a simple receipt of the goods, as from the owner, signed by the defendant.

This paper was then handed to the plaintiff. The defendant in answer to plaintiff’s demand, said he could not give up the furniture without an order from Miss Woodward, who had signed the bill of sale. He further said that if Miss Woodward should come to take possession of the furniture, he would notify the plaintiff, and the plaintiff assented to this.

On the plaintiff’s case, the court dismissed the complaint, on the grounds that under the contract of storage the defendant was not bound to deliver the furniture to any one, except by the written order of Miss Woodward, in whose name and on whose account they were stored, and that the defendant, by his refusal to deliver the property to the plaintiff, did not wrongfully detain it.

George E. King for plaintiff and appellant.

D. Mc Mahon for defendant and respondent.

The bill of sale did not reserve to the party making it the right of possession, but gave her a right of redemption. All else

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was given to the plaintiff, and she was entitled to the possession against the defendant.

The defendant’s claim to withhold possession is not valid. It is placed upon the terms of the contract of storage, as contained in a storage receipt made by defendant. But the facts show that the furniture had been stored for more than two weeks before the defendant presented the special receipt, and its terms no where appear to have been assented to by the owner or her agent. Again, the defendant attempted to impose the special terms upon the general contract of storage, for the first time, on the occasion of the plaintiff’s demand, for then first was the receipt of storage produced. Again, the receipt as drawn by him did not in its terms justify his refusal. The form of the receipt was such as to make it at least doubtful whether the special clauses were a part of any contract, or anything more than notice to the party storing goods. Under any circumstances, there would have to be evidence of assent to their provisions, and there was none in this case. But these clauses did not require absolutely a written order. They required either a written order (to be made by whom is not specified) or presentation of the original receipt. In this case the written receipt had been just presented by the defendant, and was there when the demand was made. The person with the plaintiff was the one who had made the delivery to the defendant, and was there to identify the plaintiff as the vendee named in the bill of sale. The defendant made no request to examine into the genuineness of the bill of sale.

If the former owner had at the time of storage made an agreement that the defendant was not bound to deliver except upon the written order of that owner, it would not justify the defendant in refusing to deliver to a person succeeding to the ownership until such a written order was procured. It was not a lien,

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It had no relation to the fact of title or ownership. Under no circumstances, was the defendant authorized to deliver to one not entitled to possession. The law gives him reasonable time to inquire if the party demanding the property is entitled to possession (Ball v. Liney, 48 N. Y. 6 ; McEntee v. New Jersey Steam Co., 45 N. Y. 34 ). At the most, it is an agreement by the party assenting to it, a breach of which is without damage. In case of well founded doubt as to who is the owner, the bailee can bring his action in the nature of an action of interpleader (Ball v. Liney, supra), but for his convenience, or even for his interest, he should not be permitted to keep the owner’s right dependent upon the action of a party who has ceased to have any interest to give the written order.

The judgment should be reversed, and a new trial granted, with costs to appellant to abide event.

Monell, Ch. J., concurred.

Cases cited

Ball v. Liney 48 N. Y. 6 N.Y. Comm'n App. p. 226
McEntee v. New Jersey Steamboat Co. 45 N. Y. 34 N.Y. 1871-02-21 p. 226