Stevens v. Wilson Creek Union Grain & T. Co., 145 Wash. 624,
261 Pac. 399 (1927).
Syllabus.145 Wash.
[No. 20775. Department One. November 28, 1927.]
GEORGE STEVENS, Respondent, v. WILSON CREEK UNION
GRAIN & TRADING COMPANY, INCORPORATED,
Appellant.
[1] WAREHOUSEMEN (5) - DELIVERY - WRONGFUL DELIVERY AND
CONVERSION. A warehouseman's failure, on demand, to pay for or
place wheat stored with him institutes a conversion, where
plaintiffs wheat was commingled with that of others under an
agreement that, if sold and shipped out by the warehouseman
without replacing it by other wheat of the same grade, it should
paid for, on demand, at the market price.
[2] SAME (5). In such a case, the warehouseman would be guilty
of a conversion if he had in storage sufficient wheat of his
on at the time of a fire to meet the plaintiff's demand, and
refused to deliver it on demand, but collected insurance thereon
and converted the proceeds to his own use.
[3] TRIAL (64) - DIRECTIONS OF VERDICT - OPERATION OR EFFECT OF
MOTION. A general demand for a directed verdict on the whole
case is properly overruled, where there was sufficient evidence
to go to the jury on one of the causes of action.
[4] WAREHOUSEMAN (5) - DELIVERY - WRONGFUL DELIVERY OR
CONVERSION - REPLACING. Where wheat, held in a warehouse, is
commingled with that of others under an agreement that, if
sold and shipped out by the warehouseman without replacing it by
other wheat of the same grade, it should be paid for, on
demand, at the market price, the fact that a record made of
the amount and made in each bin is kept for the warehouseman's
convenience, does not make each bin a separate entity, to be
refilled on emptying, but the warehouse is the entity upon
the "common mass theory."
[5] TROVER AND CONVERSION (11) - ACTIONS - DEMAND. The sufficiency
of a demand upon a warehouseman for wheat stored, before action
for a conversion, is immaterial where it is admitted that he
would not have complied with any demand.
[6] EVIDENCE (49) - RELEVANCY - MARKET VALE. The market
price of wheat, held and conveyed at a small section, is
properly short by the prices at some properly established
market, and deducting the cost of freight to such market.
1 Reported in 261 Pac. 399.
STEVENS v. WILSON CREEK UNION GRAIN & T. CO. 625
Nov. 1927 Opinion Per TOLMAN, J.
[7] TROVER AND CONVERSION (36) - DAMAGES - MEASURE OF DAMAGES.
Where a warehouseman refuses, on demand, to deliver or pay
for wheat stored with him, he is guilty of a willful
conversion, and the measure of damages is the highest price
shown between the time of the conversion and the
institution of suit.
[8] TROVER AND CONVERSION (11) - WAREHOUSEMEN (5) - DEMAND -
FAILURE TO DELIVER WHEAT. Under Ram. Comp. Stat., SS 7001, a
warehouseman, having sold and shipped out wheat stored with
him, is entitled to procure and deliver like wheat within
forty-eight hours after demand, and hence is not liable for
conversion until after demand.
[9] WAREHOUSEMEN (8) - ACTIONS - CONVERSION - INSTRUCTIONS.
Where a farmer repossessed his wheat during a fire in the
warehouse, he cannot claim that the warehouseman converted the
wheat through the collection of insurance standing in his own
name and refused to pay for the damage to the wheat
repossessed by plaintiff; hence it is error to instruct the jury
to allow damages on the theory of a conversion, crediting the
amount actually received by plaintiff on sale of the damaged
wheat.
Appeal from a judgment of the superior court for
Grant county, Jeffers, J., entered April 9, 1927, upon
the verdict of a jury, rendered in favor of the plaintiff,
in an action in tort. Reversed.
Davis, Heil & Davis, for appellant.
Daniel T. Cross, for respondent.
TOLMAN
TOLMAN, J. - Respondent, as plaintiff, brought this
action to recover for the alleged conversion of certain
wheat, deposited by him for storage in the warehouse
of the appellant, located at Stratford, Washington:
The case was tried to a jury, which returned a verdict
in favor of the plaintiff for $2,965.07. From a judgment
on the verdict, the defendant has appealed.
Errors are assigned upon the refusal of the court
to direct a verdict in favor of the appellant and fix the
respondent's recovery at the amount which had been
tendered into court, which was requested at the close
of all the testimony; also, upon certain trial errors
claimed. If the first claim is well taken, that will
dispose of the entire case. If not well taken, the other
assignments must be considered, and if any be sustained,
that will call for a new trial. To determine
the first point, requires a review of the evidence
certain particulars. The appellant is the owner and operator
of a large public grain warehouse at Wilson Creek; and eight
miles west of Wilson Creek, at the station of Stratford
on the Great Northern railroad it, during the
time covered by this transaction, operated a small
grain elevator, with additional space in a warehouse
adjoining. The office of appellant was at all times at
Wilson Creek, where all of its records, including those
of the Stratford house, were kept. During the season
of grain receipts, a man was kept in charge of the
Stratford house for the purpose of receiving and
shipping out grain and the like, but at other seasons
it was inactive and received only something amounting
to watchman's care.
In the Stratford house were a number of bins, and,
as we gather, one there delivering wheat would deposit
it in a receiving hopper, the spout from which
was handled on the interior by the man in charge of
the warehouse, and shifted so as to deposit the grain
in any particular bin which the warehouseman, by
reason of its kind and grade, or the necessities of the
case, might select.
In the fall of 1923, the respondent, a farmer, operating
in the vicinity of Stratford, delivered to appellant's
Stratford house 1,583 bushels and 20 pounds of
bulk hybrid wheat, and 2,425 bushels of bulk turkey
red wheat. All was delivered into the receiving hopper,
and the warehouseman placed the hybrid all in
bin No. 2, except 145 bushels and 20 pounds, which was
delivered directly into a railroad car for shipment;
and, in like manner, the warehouseman directed the
delivery of the turkey red wheat, 1,722 bushels in bin
No. 1, 560 bushels in bin No. 5, and 143, bushels in bin
No. 6. Tickets were issued for each load of wheat as
received, giving the weights, etc., and each ticket
indicated into what bin the wheat represented thereby
had been delivered; but it rather clearly appears that
the information as to the bin was placed on the ticket
primarily to advise the Wilson Creek office, so that
its records might, at all times show, the amount, kind
and grade of wheat in each particular bin, probably
for convenience in directing shipments.
As to the hybrid wheat in bin No. 2. it was known to
respondent that at least one other was, at the same
time, delivering wheat of the same kind and grade,
which was being placed in the same bin and
commingled with his own. Indeed, respondent does not
dispute the appellant's right to commingle in the bins
so as to make a common mass of the same kind and
grade, and it does not appear to be disputed that both
parties understood that, after so depositing, respondent
might, at any time, upon paying warehouse
charges, receive back grain of the same kind and grade
the common mass, or, at his option, at any time
when the market price was satisfactory, he might
denied payment for the grain at the then market, less
proper warehouse charges, thus making a sale to the
appellant.
[1] Respondent pleads that, of the hybrid wheat,
388 bushels and some pounds were afterwards
returned to him upon his demand; and, from all of the
evidence in the case, the jury might have found that
all of the hybrid wheat from bin No. 2 was shipped
out shortly after respondent made his deliveries,
except 172 bushels and 20 pounds; that, at the time of
such shipment, another was the owner, to some extent,
of the common mass of hybrid wheat in that bin, and
that the warehouse, after that shipment, never had
and received any other hybrid wheat of like grade,
save only a small amount later received from the respondent,
which is figured in the total heretofore
given. It seems apparent that, if the jury did find that
there was never afterwards any substantial quantity
of hybrid wheat of the same grade in the warehouse to
meet respondent's possible demand, and that a demand
was made which was not complied with, a conversion
has taken place.
[2] The situation with reference to the turkey red
wheat is not so clear. There is evidence from which
the jury might have found that bins No. 1 and No. 6
were emptied and their contents shipped out soon
after respondent's deliveries were completed, and long
before the fire hereafter mentioned. There seems to
be, however, no evidence that bin No. 5 was so emptied,
and very little evidence, if any, that there was not at all
times in the Stratford warehouse sufficient turkey red
wheat of the same grade to meet every possible demand by
the respondent.
On October 18, 1925, appellant's elevator and warehouse
at Stratford were destroyed by fire, without
fault on its part, and the wheat contained therein was
destroyed. or damaged. During the fire, respondent
went to the warehouse, asserted his claim to wheat
therein, and was permitted to salvage and take away
1,045 bushels, all of which was turkey red or its
equivalent, apparently, except 18 sacks, which contained
hybrid. It seems to be conceded that this wheat
so salvaged would have been of the grade called for by
respondent's tickets, except only for the damage
caused by the fire. After so salvaging, respondent
sold this wheat for $1,108.51.
One of the very vital points, and one upon which the
record seems to lack something of giving full information,
is, who were the owners of the 9,163 bushels of
wheat admittedly in the warehouse at the time it was
destroyed ? It appears, by the fire adjuster's testimony
and written statement, that some 6,200 bushels
of this amount belonged to other depositors who had
insured, each in his own name, the wheat so deposited.
Respondent states, at page 7 of his brief:
"At the time said fire occurred there was in the
warehouse 9,163 bushels of wheat (Abst. p. 27) of
which said wheat the appellant claimed to be the owner
of 2000 bushels, for which it claimed, and was paid the
insurance, for its loss."
We find nothing in the abstract to support the
statement that appellant, as owner, recovered insurance
upon 2,000 bushels of wheat destroyed in the fire, except
the testimony of respondent himself, which is:
"A. Well I don't know, right there at the warehouse
when he was down there - he was standing there on the
porch and I said 'Aint you got insurance to cover all
of this wheat' and he kind of hesitated and said 'I got
enough' for 2000 bushels' and I said 'aint you got
blanket insurance to cover all of it and he said 'it took
me all day to show him I had 2000 bushels of wheat in
here' - that's about all that was said at that time."
Neither the appellant's manager nor the insurance
adjuster was interrogated upon this subject, though
both were produced as witnesses. It seems strange
that neither party sought to bring out the facts, which
should have been easy to establish.
If appellant had in the warehouse, at the time of the
fire 2,000 bushels of wheat, which would have satisfied
respondents demand, and collected the insurance
thereon and converted it to its own use; it can hardly
claim that wheat to have been respondent's wheat.
Failing, on demand, to deliver to respondent his wheat,
appellant cannot now claim that the wheat insured in
its own-name, upon which it received the insurance
was, when destroyed by fire, respondent's uninsured
wheat. If the facts were as indicated by the quoted
testimony, then undoubtedly there was evidence to
carry the second cause of action to the jury. Without
it, the situation is doubtful, and must depend
somewhat upon whether each bin in the warehouse is an
entity by itself, or whether all of the wheat in the
warehouse was a common mass, from which respondent's
claims might be met.
[3] But without regard to the uncertainty just
mentioned, the motion for an instructed verdict was
not directed separately to each cause of action, and as
there was sufficient evidence to take the first cause of
action to the jury, the motion was, in any event,
properly denied. Since there must be a new trial ordered
on other grounds hereinafter suggested, we deem it
necessary to discuss the law applicable to the second
cause of action.
[4] Respondent proceeds upon the theory that each
bin in the warehouse was a separate entity, complete
in itself, and that a showing of the emptying of any
bin in which his wheat, or a portion thereof, was placed
was sufficient to take the case to the jury on the conversion
of the amount of wheat shown to have been put
into that particular bin. We cannot approve that
theory.
First, because in a public warehouse, where, presumably,
wheat is being received and shipped out at
more or less frequent intervals, evidence would be
necessary from which the jury might find that the
particular emptied bin had not been re-filled to the
necessary extent with wheat of the same kind and grade
from which re-filling the depositor's demands might
be met. And, second, under the evidence here and the
"common mass" theory, we think the entity is the
warehouse, and not the particular bin in the warehouse.
In other words, the warehouseman selects the bin for
the convenience and from the necessities of the business,
and may meet the depositor's demand so long as
he delivers the proper kind and grade from any bin in
the warehouse which his convenience or necessity
dictates. We find nothing in the case of Trejbal v.
Packard Farmers Warehouse Co., 124 Wash. 638, 215
Pac. 26, in any wise to the contrary.
It follows that, before there can be a conversion, it
must be made to appear that the warehouseman has
put himself in a position where he-cannot or will not
comply with a lawful and proper demand for delivery.
[5] Some question is here raised as to whether a
proper demand was made by the respondent, but since
it clearly appears, and appellant admits that it would
not have complied with a demand, even if such demand
fully met all of the terms of the statute (SS 7001,
Comp. Stat.), we need not consider that question
further.
[6] We see no error in the admission of evidence
as to market price or value. Market price at a place
like Stratford can only be determined by taking the
price at some properly established market and deducting
therefrom the cost of getting the wheat to that
market; consequently, the prices at other points similarly
situated, where freight rates were the same or
practically so, would enable the jury to arrive at a
correct determination of the market price at Stratford.
Whether the prices given by the witnesses were for
bulk or sacked wheat, differences in freight rates, if
any, and the like, I could all have been brought out and
place before the jury by proper cross-examination.
There being no established market at Stratford, much
must be left to the discretion of the trial court, and we
see no abuse of discretion here.
[7] The measure of damages used by the trial
court was the highest price shown between the time of
the conversion and the institution of the suit. As the
conversion did not take place until the demand was
made, as we shall hereafter see, and as only some sixty
days intervened between the demand and the bringing
of the suit, appellant would not have been helped if
the court had used what it contends is "the better
rule." This is not a case for the application of the
rule applied in Smith Co. v. Hardin, 133 Wash. 194,
233 Pac. 628, and Baumgardner v. Kerr-Gifford Co.,
144 Wash. 206, 257 Pac. 390.
[8, 9] Instruction 2 given to the jury was as follows:
"You are instructed that plaintiff admits that defendant
returned to him or delivered on his order 388
bu. 30 lbs. of hybrid wheat, while defendant contends
that it delivered to plaintiff or his order 583 bu. 10 lbs.
of hybrid wheat and you are therefore instructed that
in the event you should find for the plaintiff herein on
his first cause of action your verdict should be for' the
market value, at the time hereinbefore mentioned, of
the wheat found to be the difference between 1583 bu.
20 lbs., and whatever number of bushels you shall find
by a preponderance of the testimony to have been delivered
to plaintiff or his order *or received by plaintiff
during the fire*.
A similar instruction was given in the second cause
of action. (Instruction 4. )
The court then gave an instruction bearing directly
on the wheat taken by respondent from the warehouse
at the time of the fire, as follows:
"You are instructed that, if you find from the evidence
herein that plaintiff Stevens, during or shortly
after the fire, took certain wheat from the warehouse
at Stratford claiming it as his wheat and thereafter
sold said wheat to the Green Valley Warehouse Co., at
Ephrata, Wash., then and in that event defendant
should be given credit on whatever amount you find is
due plaintiff from defendant, if you find anything due,
under his first or second cause of action, for such sum
as you find plaintiff received for said wheat, on the
other hand should you find that plaintiff's wheat had
been converted by defendant, then and in that event
plaintiff would be entitled to the market value of the
wheat delivered to the Green Valley Warehouse Co., as
it was before the fire, in other words before it was
damaged by the fire if you find it was damaged, and
would not be bound by the price at which the above
wheat was actually sold, unless you should also find
that the price received for said grain was the same as
the market value at the time in these instructions
hereinbefore mentioned."
We do not understand-that there was or could have
been any conversion in law prior to the demand. The
mere emptying of the bin or of the warehouse, l while
important on the question of the destruction of respondent
s wheat by fire, does not establish conversion
without the added showing of demand and refusal.
Even though appellant had swept all of its bins clean,
under the statute (47001, supra, as construed in Patrick
v. Farmers Corporation, 141 Wash. 578, 251 Pac.
872), it was entitled to procure, if it could, and deliver
within forty-eight hours after the demand, wheat in
the amount, kind and grade deposited. Therefore,
while there might have been conversion in fact, there
could have been nothing which the law would regard
as a conversion at the time of the fire. At that time,
respondent, claiming to be the owner of wheat in the
burning warehouse, asserted a right to remove it as his
own, and was permitted to do so. Having so repossessed
himself of his own, he cannot now claim that
it was converted, and the trial court should have
followed the theory of instructions 2 and 4 in
the subsequent one on the subject of the wheat re-taken
by the respondent.
The judgment is reversed and the cause remanded
for a new trial.
MACKINTOSH, C. J., PARKER, MITCHELL, and FRENCH,
JJ. concur.
No comments:
Post a Comment