It was also generally known and admitted that for some days before January 14th telegraphic communication up the Columbia had been suspended by the falling of the wires from an extraordinary sleet storm, and that, therefore, the rise in the Columbia and the unprecedented warm rain to the eastward of the Cascade mountains, which produced it, were not known in Portland until the afternoon of January 14th, when a rise of some eight feet had already passed the dalles -a distance of about 100 miles east of the mouth of the Wallamet. Receipts were issued to Mr. Francis by the direction of the warehouseman of the Pacific docks for the 1,500 sacks of wheat removed to the Greenwich dock, and the wheat was afterwards sold by the plaintiff on due notice to the defendants, and the net proceeds applied on their account. The sacks of damaged wheat were afterwards removed from the Pacific docks, and the contents poured out and dried by Marshall with the consent of the plaintiff, and theu sold by the latterl upon due notice to the defendants, and the net proceeds applied in the same way. The receipts given by the Pacific docks to the plaintiff's manager were to this effect: "Received of W. W. Francis, manager, sacks of wheat for account of W. W. Francis, manager," upon the conditions, among others, that storage is paid each month, that damage by flood is at owner's "risk," and that the receipt is returned before delivery made. Mr. Francis died before the trial came off, and his testimony was not heard, and the defendant Ten Bosch had removed to Liverpool without leaving his deposition, so that the testimony of Marshall was the only evidence, outside of the writings, as to the conversations or intercourse between the plaintiff and the defendants on the subject of the action; nor was there any evidence in the case tending to show that the defendants, prior to this action, ever claimed or asserted that it was the duty of the plaintiff to care for the wheat. On the argument of the case it was contended for the plaintiff that the issue and delivery of the warehouse receipts, under the letter of the defendants, constituted a mortgage of the property therein described to the plaintiff, by which the right of property in the grain was vested in it, while the possession, with the corresponding duty of caring for it in case of a flood or other danger, remained with the defendants. On the contrary, the defendants insisted that the plaintiff thereby became the pledgee of the property, with the control of the possession thereof, and was, therefore, bound to the use of reasonable care and diligence to prevent it from being injured.; and
BANK OF BRITISH COLUMBIA V. MARSHALL.
that, having neglellted to do SO, it was responsible for the injury thereto. The court charged the jury that, strictly speaking, the transaction was neither a mortgage nor a pledge, but in its essentials partook more of the character of the latter than the former; that taking the writing given by defendants to the plaintiffs, and constru. ing it by the light of the surrounding circumstan6es, and the conduct of the parties under it, as shown by the warehouse receipts, and the' uncontradicted testimony of the defendant Marshall, it appears that it was the intention of the parties that the property in the wheat should remain in the defendant, and that. the possession thereof was given to the warehouseman as the bailee and agent of the plaintiff, and subject to its control, for the purposes for which the receipts were issued to it; but that the grain, while in the possession of the ware· houseman, as aforesaid, was held by him at the risk of the owner, in case of flood, who must, therefore, bear the loss occasioned thereby, and accordingly directed the jury to find a verdict for the plaintiff for the amount claimed by it. And the court also said to the jury that the parties, both in the pleadings, evidence, and argument, having made the question whether the plaintiff was guilty of negligence or not, and it being desirable that any question of fact in the case that might be. material to its correct determination, upon either con· struction of the contract or transaction contended for, should be settled by the jury, so as to avoid the delay and expense of a new trial in case the construction now adopted should not be approved by the appellate court, it would and did submit to them the question whether the plaintiff, assuming it to have been a pledgee of the property, and bound to use ordinary care and diligence to prevent it from being injured by the flood, was, upon the evidence, guilty of negligence in the premises. The jury found a verdict for the plaintiff, as directed, and answered the question submitted in the negative; and the defendants now move for a new trial for error of law occurring at the trial and duly excepted to, and because the verdict is against the law and evidence. The error excepted to is so much of the charge as "was given in relation to, the legal effect of the contract and the possession of the wheat." . On the argument of the motion no question was made by counsel for the defendants as to the sufficiency of the evidence to support the verdict and the finding; but the latter was treated as something immaterial. It was insisted, however, that the court not only erred in construing the contract, but also in assuming that the testimony of
the 'defendant Marshall, as to the oonduct of the parties under it, was true, instead of leaving it to the jury. No such objection to the charge was made at the time, and therefore is not now entitled to be heard. If it had been made before the jury retired, the court, if it was thought material, could have e3lsily obviated it by saying to the jury: "If you believe;thetestimony of the defendant Marshall as to the conduct of the parties to this transaction in relation to the deposit, care, and oustody of this wheat while upon the Pacific docks your verdiot must be for the plaintiff." The reimlt must have been the same. It was assumed in the argument,by counsel for both parties, that his statements in this respect were oorrect, and certainly the defendants ought ,not to complain if the court did likewise. Nor do I think ihecourt, in construing this written contract for the jury,a.scertaining what the parties intended by it,-erred, as against the defendants, in reading it by the light of the, unquestioned conduct of the parties under it, as they then mutually understood it, as shown by the uncontradicted testimony of one of them. If there il:l any error in the' charge, it must he in the conclusion to which the court came conoerning the legal effect of the contract and the acts of the parties thereunder, to which the defendants duly excepted. Whether a transaction amounts technically to a mortgage or a pledge is sometimes a nice question; but the ultimate object of the inquiry is not so muoh to name the transaetion as to ascertain what was the intention and, understanding of the parties to it; and therefore such intent, when ascertained, ought to control. In the case of a pure pledge the oreditor takes the possession, actual or constructive, of the goods, while in that of a mortgage there is a transfer of the title to him, but not the possession. 2 Kent, 577, note 1; Story, Bail, §§ 286-7, 297. In all cases, then, where personal property is given as a security for a debt or engagement, accompanied by 8. change of possession, either actual or constructive, the transaction better comports with the character of Ii. pledge than a mortgage; and where the transaction imports nothing more than giving a security without a sale or change of title of the property, the law favors the conclusion that it was intended as a pledge and not a mortgage. Sehouler, Bail, IG3. But the rights and obligations of the parties to a pledge may be modified indefinitely by special contract between them, as that the pledge shall be kept, until the default of the pledgor, at some particular place, or by some particular person. Ide 205; St. Losky v. Davidson. 6 Cal. 647.
BANK OF BRITISH OOLUMBIA V. MARSHALL.
My impression still is that the transaction between the plaintiff and the defendants is in its essential features a pledge. There was no sale of the property or transfer of the title to the plaintiff, but a deposit thereof with the warehouseman of the Pacific docks as a security for money loaned to the de(endants. The term "mortgage" is not used in the contract, neither does it contain any language which indicates in the least a sale or transfer of title. The stipulation for a lien, though unnecessary in case of a pledge, is in harmony with the idea of one, of which it is an essential feature; but inconsistent with the idea of a mortgage, which goes further and passes the legal title. The power of sale is also consistent with the purpose to constitute a pledge, of which it is a legal incident, although not an unusual provision in a mortgage. The issue and delivery of the receipt was only a mode of furnishing the plaintiff with the evidence of the deposit of the pledge at the place agreed upon, and the right to the possession of the same and to dispose of it according to the terms of the bailment. But from the nature of things it was a pledge qualified by the situation and subject of the contract and the conduct of the parties under it, so that the custody of the property, instead of being actually or absolntely in the plaintiff, remained in the warehouseman, subject to its control for the purposes of the contract, and while there at the risk of the "owners"-the defendants-in case of flood. The contract of the warehouseman with the plaintiff, 88 appears by his receipt, provided that the wheat while there should be at the risk of the "owners" as to "flood," and this receipt was issued with this stipulation, and delivered to the plaintiff at the instance and by the direction of the defendants. The defendants then claimed and still claim that they were the owners of this wheat, and there is no doubt in my mind but that they were. This being so, and nothing appearing to the contrary, they must have been understood, npon delivering the receipts to the plaintiff, as taking the risk of floods while the wheat was owned by them and stored in that warehouse, even if there was no other fact in the case tending to prove that such was the understanding. But admitting that the court erred in its charge to the jUl'y in this respect, and that it should have charged the jury, as contended by the defendants, that the plaintiff was an unqualified pledgee of the wheat, and as such bound to use ordinary Care and diligence to prevent it from being injured by the flood, still the motion for a new trial ought not to prevail, because it appears from the special find·
ing of the jury that even upon that theory of its liability the plaintiff was not guilty of negligence in the premises. To avoid this con· elusion, counsel for the defendants assume that this finding is an immaterial matter, and therefore one that can have no weight in the consideration of this motion. Upon what ground this assumption rests does not appear. No authorities are cited or reasons given in support of it. There is no doubt but that the court had authority to submit this question to the jury for its determination. Section 212 of the Or. Civil Code provides that the court "in all cases may instruct them, [the jury,] if they render a general verdiet, to fin d upon particular questions of fact." And this special finding shall control any general one with which it is inconsistent. ld. § 213. The submission of particular questions of fact to the jury is a matter wholly within the discretion of the court. Am. Co. v. Bradford, 27 Cal. 365; Taylor v. Ketchum, 5 Rob. 514; S. C. 35 How. 296. This finding is, therefore, legally a part of the case, and must have such effect as it is entitled to in any subsequent proceeding therein. The question was one upon which the parties gave evidence and submitted argument to the jury.. Upon the defendant's theory of the transaction,-that it was simply a pledge, and therefore the plaintiff was bound to use ordinary care and diligence to save the grain from injury-the question was a material one, because they could not maintain their counter-claim for the injury to the wheat, even if ·the plaintiff was held to be the pledgee thereof, unless they also proved that lluch injury was the result of its negligence. Suppose the question had not be.en submitted, and that the court should now be satisfied that the charge to the jury was erroneous, and that they should have been instructed that it was the duty of the plaintiff to care for the wheat; and suppose the court should also .be of the opinion that according to the weight of the evidence given on the trin,l the plaintiff was not guilty of negligence,-the motion fora new trial would be denied. For the counter-claim of the defendants be maintained upon any view of the law as to whose duty it was to take care of the wheat, unless the plaintiff was guilty of negligence. A new trial is never granted for an errol' occurring in the progress of the case when it is apparent to the court that upon a retrial the verdict must be the same. Thomp. Charg. Jury, H;2. But this is, if anything, a stronger case agairfst the motion. For the jury, upon the question being submitted to them upon the whole evidence in the case, have found that there was no negligence. Nor
is there any complaint that this question of negligence was not fairly and fully submitted to the jury, or that the parties were not fully heard upon it or in any manner surprised by it. As has been said, the question was directly made by the parties in their pleadings, evi. dence, and arguments, and in my judgment it was really the only question in the case for the jury. The motion must be denied and the plaintiff have judgment upon the verdict.
THATOH v. METROPOLE INs. Co.
caircuit Court, D. aJloraaQ. January 4, 1882.)
INSURANCE POLICy-PARTIES-RIGHT OF ACTION.
Where a person took out a policy of insurance against fire containing the provision that the loss, if any, should be paid to a third party, creditor of the insured, .. as his interest may appear," such third party has no right of action upon the maturity of the policy, it not being a stipulation for the payment of all the loss. Hartfora Ins. ao. v. DafJenport, 37 Mich. 613, followed.
On Demurrer to Complaint. Hugh Butler, for plaintiff. Charles d; Dillon, for defendant. HALLETT, D. J. This is an action upon a policy of ineurance. Plaintiff alleges that Emma V. B. Oray, on the twenty.first day of August, A. D. 1880, obtained of the defendant insurance on certain premises in the. town of Idaho Springs. The amount of the insure ance is not stated, I believe, but it is alleged that the policy provided for the payment to plaintiff in case of loss or damage by fire of some sum, as his interest might appear. It is alleged that plaintiff was a creditor of Emma Oray, and that the indebtedness was secured bya trust deed on these premises; that the premises were de'stroyed by fire, and plaintiff's loss thereby exceeds the sum of $2,000. There is no definite information in the complaint as to the amount of the insurance, or the amount of the indebtedness due plaintiff from the party insured. It does appear that the policy was taken out by Emma Orayand paid for by her. She paid the premium. Plaintiff demands judgment for $2,000. If it appeared in the complaint that insurance was taken out by this woman, and that the stipulation of the policy is that the loss, if any should occur, should be paid to the plaintiff, all of it-the entire