HORR et al. v. BARKER et al., 8 Cal. 609

Burnett, J., after stating the facts, delivered the opinion of the Courts—Terry, O. J., concurring. The counsel of defendants insist that there was no sufficient segregation of the three hundred and twenty-four barrels from other flour. But it is unnecessary to notice this point, as it was determined by this Court when the case was here before, October, 1856. The segregation was decided to have been sufficient.

The next point made by defendant to sustain the order of the Court below in granting á new trial, is that the possession by plaintiffs of the warehouse-receipt issued to West, was no evidence of a sale by West to them, as the receipt was not endorsed, and no other proof was given of an actual sale. Prom the testimony, the proof would seem ample to justify the conclusion that West was the broker of defendants, and fully authorized to sell the flour.

The only question left is, whether the evidence was sufficient to sustain the verdjet of thw jury, that there was a sale of the three hundred and twenty-four barrels to plaintiffs. Chancellor Kent laid it down that “ the delivery of the receipt of the store-keeper for the goods, being the documentary evidence of the title, has been held to be a constructive delivery of the goods.” 2 Kent, 500. And he refers to the case of Wilker & Fontaine v. Ferris, 5 John. R., 335.

The case referred to seems to sustain the position in the text, although the facts of the case are not very clearly stated as to the question whether the storekeeper’s receipt was endorsed, or not.

So, it is stated in Story on Sales, § 311, that “the delivery of the key of a warehouse containing the goods sold, or of the bill of lading of goods at sea, or of the receipt, ticket, sale-note, dock-warrant, certificate, bill of parcels, or other usual type and evidence of title to goods in the situation of those sold, will be a sufficient constructive delivery of them to pass the title.” “ So, also, the delivery to the vendee of an order on the warehouseman in whose warehouse the goods are stored, is sufficient to pass the title, but not to destroy the lien of the vendor.” § 312.

The same doctrine is laid down in Story on Contracts. §§ 810, 792. It was said by Gardiner, C. J., in delivering the opinion of the Court, in the case of Brown v. Peabody, 3 Ker., 126, that “ the receipts, although recognized as prima facie evidence of property in the thing receipted, in those who have them in possession, do not, it is presumed, enter into the currency, and, like bank-notes, become the property of a bona fide holder.” The receipts, in that case, had been stolen, and the holder, upon that fact being established, was held not entitled to the property mentioned in the receipts.

So, in the case of the Bank of Rochester v. James, 4 Cow., 497, it was said that the title to goods might be transferred by the delivery of the bill of lading, if done with that intent. The same was substantially stated in Stanton v. Small, 3 Sand-ford, 240. It seems to be well settled, that a delivery of a bill of lading for goods at sea, will pass the title. Story on Contracts, § 810; 2 Kent, 500; 24 Pick. R., 42; 5 John.

R., 335. tj But it must be conceded, that while the language of these authorities seems to be clear, that a delivery of a warehouse-receipt, without assignment, is sufficient prima facie to pass the title, there are very few adjudged cases where the facts fully sustain the opinion expressed. However, upon principle, reason, and convenience, it is difficult to draw any substantial distinction between a bill of lading and a warehouse receipt. If the delivery of the one can pass the title to the property described therein, the delivery of the other should have the same effect.

There is no substantial difference in the two cases. In this case the flour was “ deliverable,” not to West, or his order, but “|pi return of the receipt.” From the terms of the receipt it seems to have been intended to pass from hand to hand, without endorsement. But conceding that the possession of the receipt was prima facie evidence of the ownership of the property specified, the defendants insist that such presumption was rebutted by their showing that the flour in fact belonged to them, and that West was a mere broker. The fact that the property was originally purchased of H.

B. & H., by the defendants, did not rebut the prima facie case made out by plaintiffs; because the case so made out, consisted in showing that West was the agent of defendants for the sale of the flour, and was permitted to keep it on storage, in his own name, and the receipt given to their agent was found in the possession of plaintiffs; which fact was, in effect, the same as if the receipt had been given to defendants in their own names, and had afterwards been found in the possession of the plaintiffs.

The plaintiffs traced their title, through West, to defendants, and they cannot rebut such a case by showing they once had the title. When they show that they once had the title, they only show what the plaintiffs had already shown. Our conclusion is, that the testimony was sufficient to warrant the verdict, and that there was no error in the refusal of the Court to give the instructions asked for by the defendants, and no cause for granting a new trial. The order of the Court below is reversed, and that Court will enter judgment for plaintiffs.